Introduction

What is Land? - LPA 1925, s 205: ‘Land’ includes land of any tenure, and mines and minerals…’ land includes not just tangible physical property, but also intangible rights in the land, such as the right to walk across a neighbours driveway. - Land is the physical asset and the rights the owner and others enjoy over it.

‘The idea of property in land’ – Kevin Gray and Susan Francis Gray - The idea of property is fragile, elusive and misused - Property is not a thing but a relationship - Property is the word used to describe particular concentrations of power over things.

Statutory Formalities:

LPA 1925: - Provided a redefinition of what rights could be legal or equitable - Says a lot about joint ownership, creation of proprietary interests, nature of fee simples and leaseholds

LPA 1925, s1: - Legal Estates and Equitable Interests - (1) The only estates in land which are capable of subsisting or of being conveyed or created at law are— . (a) An estate in fee simple absolute in possession; . (b) A term of years absolute. (2) The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are— . (a) An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute; . (b) A rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years absolute; . (c) A charge by way of legal mortgage; . (d)...... (e) Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rentcharge. . (3) All other estates, interests, and charges in or over land take effect as equitable interests.

LPA 1925, s2: - Conveyances to be by deed - (1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed. (2) This section does not apply to— (a) assents by a personal representative; (b) disclaimers made in accordance with [sections 178 to 180 or sections 315 to 319 of the Insolvency Act 1986], or not required to be evidenced in writing; (c) surrenders by operation of law, including surrenders which may, by law, be effected without writing; (d) leases or tenancies or other assurances not required by law to be made in writing; (e) receipts [other than those falling within section 115 below]; (f) vesting orders of the court or other competent authority; (g) conveyances taking effect by operation of law.

1 LPA 1925, s53: - instruments required to be in writing - (1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol— (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law; (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will; (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will. - (2) This section does not affect the creation or operation of resulting, implied or constructive trusts.

Law of Property (Miscellaneous Provisions) Act 1989, s 2: - an instument shall not be a deed unless - (a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and (b) it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

Settled Land Act 1925: - designed to regulate the creation and operation of successive interests in land

The Land Registration Act 1925/2002 - creates a system whereby title to land estates and other rights are recorded - records the land, who owns it, what type of right

Land Charges Act 1972: - establishes a system to regulate transfer of land - designed to bring certainty to dealings - deals with unregistered land which is proved by deeds and documentation.

Types of Proprietary right:

- Estates in Land: an estate confers a right to control and use land. When people say they own land they mean they hold ‘the fee simple absolute in possession’. A fee simple/freehold is the righ to use and enjoy the land for the duration of the life of the grantee and that of his heirs and successors. - Leasehold estate: right to use and enjoy land for a stated period of time. - Fee tail: an interest in another persons land. An interest permitting its owner the use of land for the duration of their lifetime and theur lineal descendants. - The life interest: gives the holder the right to enjoy the land for the duration of their lifetime. On death the life interest comes to an end and the land reverts to the superior estate owner.

Legal or equitable properietary rights.

- Legal rights: provided a property right falls within s1 of the LPA it will be legal if it is created with the proper formality; it must origionate in a deed. - Equtiable rights: a right may be equitable if: 1. it is excluded form the definition of a legal estate or interest found in the LPA. Such rights can only ever be legal as they cannot be equitable.

2 2. despite falling within s1 no deed may have been used where such is required, 3. despite being within s1 and the use of a deed registration may not have ocurred where required. - A right will be equitable is it is created by a written contract or instrument within s2 LPA 1989 or s53 LPA 1925. - The proposed system of electtronic conveyancing will make the distinction between legal and equitable rights largely redundant. The right must be enetered electronically or it won’t exist at all. Ø Consequence of the distinction between legal and equitable: - The effect of the right on a third party depends on whether it is legal or equitable. - The distinction is becoming less important, the Land registration Act 1925 means that it is more about the interpretation of the statute than the nature of the right these days. - Pre 1925: o Legal properietary rights bound every person who owned land over which the right existed o Equitable properietary rights bound every transferee of the land ecept a bona fide purchaser for value without notice.

Distinction between registered and unregistered land:

- Registered land is governed by the LPA 1925, Common Law and LRA 2002 - Unregistered land is governed by LPA 1925, Common Law and LCA 1972 - Unregistered land is dissapearing as it is all becoming regstered.

Registered: - Title is registered in a register - Titles are given a number and the details of the owner are registered - Owenership is guarenteed by the state if the owner is registered - It means that when buying you know that the title has been fully investigated and approved. - ‘registered charge’ – legal mortgage which is registered. - ‘unregistered interests which override’ – overriding interests which are automatically binding on any transferee or occupier without the need for any registration - ‘protectable registered interest’ – will only bind a purchaser if they are registered against the title they affect. Registered by notice.

Unregistered: - land to which the title is not registered - title is located in deeds instead - ‘legal rights bind the whole world’ - equitable rights in unregistered land fall into 3 categories: 1. most are land charges under LCA 1972. Must be registeered against the owner of the land over which they take affect in order to bind purchaser. 2. A number of equitable rights that aren’t land charges can’t be registered under the LCA 1972 and their effectiveness is decided by the old doctrine of notice 3. Rights not under the LCA and not under doctrine of notice are overreachable rights – they are equitable rights of a special nature as they are capable of easy quantification in money. May be overeached and so not binding on a new purchaser

3 Concepts in Land Law – Public Law aspects:

- Human rights should not be infringed by claims of economic rights. - Penalver and Katyal: argue it is good to break the law regarding property. Greensborough Protests led – break of property law that led to the Civil Rights Movement. Digital Pirates make for better intellectual property law. squatters demonstrate a criminal under use of property. - Public law interests mould land law.

Article 1 of the First Protocol, European Convention on Human Rights: - ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ - Companies have the same rights as individuals. Not a right to property but rather a rigts to peaceful enjoyment of possessions. - The state has a right to expropriation – there is no universal right to property, right to posessions is limited by the state power to control that possessory right and societal morals. - ‘peaceful enjoyment of possessions’ – prima facie, any interference with your property is covered by this protocol. This is a very wide provision - ‘interference’ not a right to have property but to keep it – hence in Appleby the applicants could not use it. - ‘deprivation’: narrower than the ordinar meaning in english – not simple loss of porperty but government taking for its own use as owner – compulsory purchse. - Controls on use – whatever the ‘state deems necessarry’ – the state may deem it necesarry to destroy property or state may take property to enforce taxes - Inconsistency in the protocol: o ‘enforcement’ of taxes is mentioned, ‘imposing’ taxes is not mentioned o inconsistent terminology ‘possessions/property’, ‘public interest/general interest’ o substansively it is a weak provision – no compensation for taking property – no restrictions on severity of controls on use or taxes. - The protocol establishes that: o Rule of law: administrators cannot act without authority of law o Public/general interest: legislature cannot act for interest of a select minority – unless a broader interest is also at stake - Sporrong v Sweeden: held that an interference with the peaceful enjoyment of possessions must strike a fair balance between the demends of the general interests of the community and the requirements of the protection of the individuals fundamental rights. This balance is reflected in the structure of article 1. The requisite balance will not be found if the person concerned has had to bear an individual and excessive burden. o Radical decisions o The limitations ‘deprivations’ controls and taxes must now all be fair as well as in the public interest and lawful. - Kozacioglu v Turkey: property belonging to the applicant was expropriated by the government. The government had set limits on valuations of listed properties so that the part of a properties value which resulted from its rarity/architectural/histroical nature was not taken into account when the government was awarding compensation to the owner. The system gave the state an unfair advantage. Held: there had been a violation of the applicant peaceful enjoyment of their possessions. State owes compensation for the heritage value too.

Article 17 ECHR, Right to Property:

4 1. Everyone has the rigt to own, use, dispose of and bequeath his or her lawfully acquired possession, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necesarry for the general interest. 2. Intellectual property shall be protected.

Article 8 ECHR, Right to respect for private and family life: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. - Sporrong and Lambeth v Sweden: structure and content of the right to property. - Appleby v UK: human rights and the limits of property. - Kozacioglu v Turkey: human rights and property ownership. Whilst a state cannot destroy property rights at its discretion, this does not mean that the state has positive obligations. It is not obliged to house its citizens.

Homelessness: - Housing Act 1986, s208(1) - Nzolameso v City of Westminster: considered the way local councils fulfill their duty to hose the homeless. Supreme Court held that the city of Westminster council had failed in its duty to provide suitable accommodation. Appellant was single mother of 5 children with debilitating physical and mental problems. She had been living in a 4-bed house in Westminster. She was evicted for failure to pay rent following the introduction of bedroom tax. The council accepted that she was unintentionally homeless, they offered temporary accommodation near Milton keens which she refused as it would be disruptive to her family, rendering her family homeless. Her children went into care. Baroness Hale quashed the council’s decision, basing this on the statutory duty on councils to provide suitable accommodation as far as reasonably practical. Tougher obligation than a mere duty to act reasonably. The council had failed to consider the implications or the alternatives. The council decision also conflicted with a statutory provision protecting the welfare of children. Public law obligations can be used to protect private rights; the HRA was not used in Hales argument. - Hotak and Others v London Borough of Southwark and another: there is duty on public authorities to provide accommodation for homeless people depending on the context of each case. Where there is reference to the vulnerability of individuals, the vulnerability had to be assessed comparatively and relatively, including support from family members provided support is regular. Hotak was an alcoholic and drug user and mentally ill, the council held it had no duty to home him as his brother said he would provide accommodation (let him sleep on his sofa) and the council said this was enough even though it was not long term. Supreme court supported decision of the council.

Property and Gender: - English land law is still very must a mans law - Married Women’s Property Act 1882: allowed married women to own and control property in their own right. - Errington v Errington - National Provincial Bank v Ainsworth: considered whether a wife’s right to live in the former marital home could be regarded a property right given that she did not own a share of the property. If it could the right might bind a third party, if purely personal it could never bind the land and the banks mortgage would take priority. Held: the wife’s right was personal: ‘a property right must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or

5 stability.’ – 4 fold test – criticised as circular – does not provide a test for whether a right is capable of assumption by third parties.

To what extent do human rights provide a right of access to land? - Appleby v UK: private owner of a shopping centre prevented campaigners from distributing leaflets inside it. Campaigners complained of a human rights breach, they said the land was public and the state was responsible and access to the centre was essential for exercise of article 10/11 rights. o Held: ECHR said it was quasi-public land. The shopping centre had been sold to a private owner and there was no state responsibility. They had only been prevented from accessing certain parts of the shopping centre and this was not enough for an infringement. They had not been prevented from expressing their views to fellow citizens. Liberalism, Social Democracy and the value of property under the ECHR – Tom Allen: - In most of Europe expropriation must comply with article 1 protocol 1 of the ECHR. - The protocol does not mention compensation – the states could not agree on an approach. - In Sporrong the ECtHR declared that any interference with the right to peaceful enjoyment of possessions must strike a fair balance between the interests of the community and the interests of the individual. When no compensation is awarded these rights are general violate. Ø Liberal right to property: - Concentrates on protecting individual liberty from the state - Sees regulation/expropriation as state interference - Property has a real value determined by reference to transactions - Expropriation is a legitimate area of state control. Ø Social democratic right to property - Regulation of property is not a primary threat to human rights, it is the failure to regulate that is the great threat. - Compensation is correction for injury, its value is assessed according to utilitarian principles. - Expropriating without compensation demoralise citizens – loss of investment. Ø The fair balance and compensation: - James v UK: court confirmed the importance of the fair balance. In some ways limits Sporrong as it allows states a wide margin of appreciation in deciding what is necessary. - The majority of the case law allows for below market value reimbursement when there are legitimate objectives of public interest.

6 Adverse Possession

Defintion: - J A Pye Ltd and another v Graham and another and Rains v Buxton combined reveal the following definition: ‘Adverse possession occurs where whether through dispossession or discontinuence, the squatter goes into ordinary possession of the land for the requisite period without the consent of the owner and acquires title to the land.’ - Four essential elements: 1. Dispossession or discontinuence 2. Ordinary possesion 3. Requisite period of time 4. Without the consent of the owner - Substantively justified as it doesn’t allow people to sleep on their rights

Context: - Though adverse possession has formed part of the modern land law landscape since 1833, the House of Lords in J A Pye and another v Graham and Another rejected the use of the phrase ‘adverse possesr.’ Lord Browne-Wilkinson said: ‘reference to adverse posession should be avoided and instead effect should be given to the clear words of the act. The question is simply whetehr the squatter has dispossesed the paoper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.’ - Lord Hope of craighead emphasised: ‘”adverse” suggests the nature of the possession by the squatter needs to be forceful or hostile, this is not so. It is a convinient label only in recognition of the fact that the posession is adverse to the interests of the paper owner.’ - Simon Briliant has noted that adverse possession decribes the activities of a squatter sufficient to entitle them to bar the right of the owner to recover the land and to vest ownership of the land in the squatter. - The Land Regristration Act 2002 builds on the Limitation Act 1980 and significantly reduces he likliehood of success of a squatters aplpication. - Options for Dealing with Squatting Consultation (Ministry of Justice): suggested introducing a new criminal offence of squatting, abolishment of ‘squatters rights’, aimed to find a way to end the misery that squatters bring, tipping the scale of justice in favour of the law abiding home owner.

Legal Framework: - Limitation Act 1980: in force in England and wales for all registered and unregistered land where more than the 12 years adverse possession ellapsed before the entry into force of the LRA 2002. - Land registration Act 2002: applies to all registered land in england and wales. Does not set out a new test required to establish adverse possession but rather builds on the existing case law.

Justification for Adverse Possession: - RB’s Policies at Lloyd’s v Butler: ‘ it is a policy of the Limitation Acts that those who go to sleep upon their claims should not be assisted by the courts in recovering their policy, another equal policy behind these Acts is that there shall be an end of litigation, and that protection shall be afforded against stale claims. - Martin Dockray: ‘It is arguable that it is in the public interest to promote the full use of neglected natural resources and that it is desirable that a fixed time limit should exist to encourage the improvement and development of land which might otherwise lie abandoned or under exploited for many years. For example, someone may have abandoned land many years ago and someone else may have started to use the land – possibly for limited purposes at first – and eventually taken possession of it ... if the occupant is perpetually barred from dealing with the land as owner, there is a danger that the property will not be utilised to best advantage. This seems highly undesirable.’ - Hopkins: The initial difficulty in justifying [adverse possession] stems from a perspective of seeing [it] as “taking” from the legal owner. The difficulties become less apparent if the rules are viewed in terms of

7 “confirming” to [the claimant] that he has the rights he has been exercising. The rules ensure that formal ownership of land reflects actual occupation and use. Reality is given preference above formal legal ownership. - In favor of the squatter it is argued that it is only fair that the squatter be registered as the new owner as the paper owner was sleeping on his rights while the squatter has occupied and improved the use and possibly the value of the land and thus should be entitled to benefit from it. - If the land in question is so precious to the landowner, they would have made use of it or inspected it within the limitation period. - A soci-economic argument raised in favor of the squatter is that of housing shortages which is directly linked to the proposition that land must remain marketable and should not be withdrawn from the market and removed from general circulation. Successive governments have struggled in sponsoring initiatives to increase the housing stock, a person who abandons their land lends to the argument that they have no need for it. - Alexander and Penalver: map adverse possession onto utilitarian theory. Consider self-redistribution an important strategy whereby the party who values the property the most can engage in self-help seize it directly from its current owner. Adverse possession supports this strategy. - Roger Smith: argues that adverse possession promotes certainty. Title deed can be lost or improperly signed and witnessed and the boundary disputes are prevelent. Adverse possession ensures that no claim to ownership can survive 12 years. when land is sold a 15 year title search must be done in order to prove ownership, without adverse possession purchasers would have to inspect documents much older than 15 years in case a defect existed. This argument is increasinly irrelevant given the registration of land and the removal of the obligation to inspect title - still relevant for unregistered land. - Human Rights Act 200: squatter has argued on the basis of Art 8 (right to a home)

Opposition to Adverse Possession: - Howard and Hill: argue that long use alone should not be sufficient to confer a legal right – ‘The fact that a claimant has enjoyed a gratuitous benefit for a period in excess [of the statutory requirements] is not in itself a justification for allowing the claimant to continue to enjoy that benefit. If, for example, a newspaper agent does not object when each week a stranger comes into his shop and takes a Sunday newspaper without paying for it, does the passage of time enable the stranger to assert a right to a Sunday newspaper when the newsagent’s good-nature is finally exhausted?’ - Some argue that the squatter is a theif. It is suggested that the landowner has worked very hard to acquire this land and thus it should not be taken away from them without compensation. The landowner argues that squatting is an immoral act. - Human Rights Act 200: home owner argues on the basis of Article 1 Protocol 1 which speaks to the peaceful enjoyment of possession.

Is possession 9/10 ths of the Law? - The old adage is that possession is nine thenths of the law. - April Stroud notes that ‘ownership of land in this country is not absolute ownership. It has always been based on a better right to possession of land. This is where the phrase comes from – if there was a dispute over who owned a piece of land, the party with the prior possession would have the better entitlement to the land. A result of this was that possession is relative - 19th century case law: Cholmondeley v Clinton (court accepted that a person in long time possession should be legally left to such, limitation statutes merely mark the sufficient period of time). Manby v Bewicke (regarded such an approach as ‘civilised’). St Leonards v Ashburner (title deeds were of little evidential weight without evidence of enjoyment of possession). Bristow v Cormican (jury was directed that a paper owner waving their deeds should be viewed as unimpressive unless they ould prove actual possession).

8 - 20th century case law: difference in opion emerging – Johnston v O’Neil (majority opinion was that not only production of documents but also proof of actual use was necesarry, obiter comment suggested that documents of title by themselves could suffice) - Gatward v Alley: an australian case that noted the following position on English law ‘in english law all title to land is founded on possession. Thus a person who is in possession of land although wrongfully has a title to the land which is good against all except those who can show a better title; that is those who can show that they or their predecessors had earlier possession of which they were wrongfully deprived.’ - Ruof and Roper: neither a conveyance nor a land certificate retains its value if the landowner is so lax or indifferent as to lose physical contorl of their land.’

Element 1: Dispossession or Discontinuence - Distinction between disposession and discontinuence raised in the dictum of Fry J in Rains v Buxton: disposession occurs where the squatter comes in and drives the title owner out of the property, while discontinuence occurs where the title owner goes out of possession and is then followed in by the squatter. - This approach was cited with approval in Buckinghamshire County Council v Moran. - Courts have consistently emphaised that dispossession or discontiunence is not sufficient, it must be followed by actual possession. - Smith v Lloyd: there was no disctinuance of the paper owner unless there was possession by another. - Hounslow London Borough Council v Minchinton: It is not relevant how long the title owner has discontinued using the land; what matters is the time during which the squatter has been in actual ocupation

Element 2: squatter has been in actual possession of the land: - Squatter must prove the fact of possession, and the intention to possess. - Slade J Powell v McFarlane: ‘if the law is to attribute possession of land to a person who can establish no paper title to possession, they must show both factual possession and the requisite intention to possess.’

(a) Factual Possession: - to satisfy the test of factual possession the squatter must be dealing with the property as an occupying owner might be expected to deal with it. - Powell v McFarlane: factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, there can be a single possession exercised by or on behalf of several persons jointly. What constitues a sufficient degree of exclusive physical control depends on the circumstances, in particular the nature of the land. - West Bank estates v Arthur: what is a sufficient degree of sole possession and user must be measured according to an objective standard, related to the nature and situation of the land but not subject to variation according to the resources or status of the claimants. - Whether or not acts of possession done on part s of an area establish title to the whole area is a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession - Cadija Umma v S Don Manis Appu: taking of a hay crop was held to suffice, decision attached special weight to the opinion of local courts and their familiarity with the local situation. - Red House Farms: shooting over the land sufficed as the court regarded shooting the only use that could be made of the land. - Hounslow London Borough Council v Minchinton:the motive for occupying land is irelevent as long as the degree of control is sufficient. The court ruled in favour of the adverse possessor who fenced off part of the claimants land to stop her dogs escaping. Court emphasised the acts were the relevent factor and not the motive behind the action. - Powell: the act must be so open that that owner had the chance to discover the adverse possession. - Topplan Estates Ltd v Townley: There is no obligation to draw the act to the attention of the owner.

9 - Age of the squatter is a relevant factor, they must be old enough to deal with the property as an occupying owner might. Age does not rule out a claim – Powell v McFarlane a claim was made on behalf of a 14 year old boy. - Cases must be considered on a case-by-case basis however the types of act found to constitute factual possession are: - Errection or Maintenance of fences walls or boundaries: Wallis Cayton Bay Holiday Camp v Shell Mex and BP fencing should assert control of the land. However fencing which is weak and temporary will not suffie: Basildon District Council v Charge. Merely patching a fence is not sufficient: Boosey v Davis. - Controlling Access: Powell v McFarlane (chain and padlock for gate sufficient) - Cultivaiton and Rearing: St Leonards v Ashburner (planting trees equivelent to building a fence) Convey v Regan (cutting of grass alone not sufficient) - Errection and enforcement of notices: Powell v McFarlane (notice followed by actual enforcement is a drastic act amounting to possession. - The type of land is evidence of the type of acts which may occur on that property.: - Marshland: Red House Farms (claimant shot over the land, only reasonablel use, fencing of land would have been impossible) - Claim to a river bed: Port of London Authority v Ashmore (bloat floated on water during the day and rested on riverbed at night, factual possession established) - Claim of the foreshore: Roberts v Swangrove Estates (cummulative effect of dredging fishing and shooting constituted factual possession) - Undeveloped land: Techbild Ltd v Chamberlain (children playing on the land and exercising ponies was considered trivial acts of trespass and not sufficient to constitute factual possession) - Face of a wall: Prudential Assurance v Waterloo (decorated wall and attached entry phone system sufficent to establish factual possession) - Grazing land: Pye v Graham (squatters took hay, manured th land, maintained hedges and ditches and held only key to the gate – suffcient) - Partial physical control: can title be claimed over the entire plot of land if the adverse possessor only maintains physical control over a portion of the land? - Clark v Ephinstone (‘there is no doubt that in many cases acts done upon parts of land may be evidence of possession of the whole, if a large field is surrounded by hedges acts done in one part of it would be evidence of possession of the whole’ – not applicable where there is undefined disputed boundary) - Powell v Mcfarlane (in the case ofopen land absolute physical control is normally impracticle, it is often impossible to secure every boundary, depends on particular circumstances – overall has possessor been dealing with the land as an occupying owner would?) - Bissessr v Lall (6 acres but only small amounts of land around the house used = sufficient) - Higgs v Nassauvian (no legal principle that requires the squatter to show they used all the land) - The control issue could relate to the time at whih the possession is exercised – does it need to be continuous? Port of London Authority (did not require boat to be on the riverbed for every miute of every day.) - Breaks in factual possession: factual possession must be for an unbroken period of time. If there are any breaks in factual possession the limtation period ceases to run. This does not prevent the coencement of a new period such rights may be left by will. Buckinghamshire County Council v Moran (changing of hands did not prevent the establishment of a claim.) - Solling v Broughton: If the paper owner makes sporadic visits to the property to guard against squatters but the squatters are not in th eproperty on any of these occassions this affirms that the control held by the paper owner defeats the claim of the squatter. - Generay Ltd v Containerised Storage Company: ‘adverse possession obviously does not require a person to maintain a 24 hour a day physical occupation’ - Slight acts: where land has apparently been abandoneed, insignificant use of the land may be sufficient: Red House Farms (shooting over land and occassional moving of grass)

10 - Law commission report - Land Registration for the 21st century: ‘where land has been abandoned slight acts by the squatter may amount to taking possession’. - Gradual imporvement though slight may be enough. It is not nesecary that the land be made profitable. - It does not matter if the act is so slight that it is something the landowner could have done himself. Nueberger said in Purbrick v London Borough Hackney: ‘it is not what the squatter could have done but what he idd nad whether what he did is sufficient to amount to physical possession.’

(b) The intention to possess: - The squatter must display an intention to possess which refers to an intention, in ones own name and on ones ownbehalf, to exclude the world at large, including the owner of the paper title. - Powell v Mcfarlane: 14 year old boy had no intention to possess the land as his own - Purbrick v Hackney: squatter stored his building equipment in the building and covered the entrances with corregated iron, secured with padlocks, replaced roof and doors. Held: he had excluded the world at large and signalled his intention to possess. He had done what he could with the available resources. - Buckinghamshire County Council v Moran: erecting a gate and locking with a padlock to prevent entry sufficed for excluding the world at large, and the squatter must show that the land was used to his own advantage. - Powell: the courts will require clear and affirmative evidence that the trespasser not only had the requisite intention to possession, but made such intention clear to the world. Dealing with the land in question as an occupying owner would have. - Pye: Neuberger at first instance suggested 7 factors which would be of assitance to the court in determining whether a squatter established a sufficient intention to possess: 1. The activities carried out by the squatter on the land 2. The nature and history of the land 3. The question of enclosure and access 4. The squatter general attitude to the land 5. The circumstances in which the squatter began adversely possessing the land. 6. The intention of the owner in so far as the squatter was aware of them. 7. The expressed and unexpressed intentio and understanding of the squatter. - Emphasis is not on the nature of the acts but the intention with which they are performed. - Fruin v Fruin: a fence was not erected with the intention to claim in ones name and on ones behalf but rather to prevent a senile member of the family from wandering away from the home. - The future intentions of the adverse possessor are irrelevant. - London Borough of Lambeth Blackburn: court rejected the submission of counsel for the respondent that he must intend to possess it indefinitely not temporarily.

Element 3: The possession has been adverse - Possession is adverse where it is without the consent of the land owner, but there is no requirement that there is a presumption of an implied licence where the adverse possessors acts are contrary to the owners present ot future enjoyment of the land. - Corea Appuhamy: possession, if lawful, is not adverse and cannot be allowed to be so – or any person entering lawfully and remaining lawfully could claim adverse possession. - Buckinghamshire County Council v Moran: Possession is never adverse if it is enjoyed under a lawful title. If a person occupies or uses land by licence of the paper owner he cannot be treated as having been in adverse possession. - Ramnarace v Lutchman: possession is not normally adverse if it is enjoyed by a lawful title or with the consent of the true owner. - Any person holding a right under a licence or lease cannot constitute a claim of adverse possession for the duration of the lease or licence. - Payment of rent is a clear indicator that there is no adverse possession, adverse possessor must deal with property as an owner would – an owner does not pay rent.

11 - Where the paper owner argues that a licence was granted, the adverse possessor may claim that no licence was ever granted or that the terms of the origional licene are different to the right claimed. - Allen v Mathews: extension beyond the persmission granted to store in a yard could give rise to a claim of adverse possession where the person was now dealing with the land as an occupying owener would. - Leigh v Jack: suggested that if the adverse possessor acts contrary to the owners present or future enjoyment of the land, he is presumed to have an implied license and cannot be treated as having taken the land by adverse possession. ‘acts must be done which are inconsistent with the owners enjoyment of the soil.’ - Wallis Cayton bay: applied Leigh which was overturned by sch 1 para 8(4) of the Limitation Act 1980 which provides that the existance of the licence shall not be presumed merely because the squatters occupation is inconsistent with the owners present or future enjoyment of the land. - Treloar v Nute: removed all notions that ‘adverse’ requires some inconvenience or annoyance to the title owner.

Element 4: adverse possession has lasted for the prescribed period of time Ø Registered land: - Sch 6, para 1(1) 11(1) and s 96(1) LRA 2002 - 10 years continuous possession Ø unregistered land or registered land where period of adverse possession is before 0ctober 13th 2003: - 12 years continuous possession - s15(1) Limitation Act 1980. - Unregistered: title of origional owner is extinguished and the squatter has a new title as for such pieces of land, possession provides the root of title. - Registered possession prior oct 13th 2003: title of land owner is not extinguished but viewed as holding property by virtue of a statutory turst for the squatter but on date of comencement no longer a trust but registered as an overriding intered by virtue of actual occupation under sch3 para 2. Ø Bars to a succesful claim: - Time will stop running in favour of the adverse possessor where a number of things exist: i. Owner statrs proceedings ot recover the land - Time stops running when owner starts proceedings to recover land - Mount Carmel Investments Ltd v Peter Thurlow: court emphasised that the mere instruction to the solicitor by the paper owner requestion that a letter be drafted asking the squatter to vacate was insufficient. ii. Owner reatkes possession of the land - There must be effective control over the property. - Doe D Baker v Coombes: without th epermission of the Lord, a squatter enclosed a small piece of wasteland on which he built a hut. Before limitation period had elapsed, the landowner entered the premises and directed that certain fencing and stone should be removed. This was done in the squatting families absence and he did not object to the squatting family. The family remained for another 15 years and then the landowner sought to take repossession by ejecting the family. It was held that the previous acts did not constitute anythign other than minor disturbance which did not affect the families actual occupation and accumaltion of time. - Randall v Stevens: possession was presumed in favour of the landowner as there was clear intent to actually remove the squatter. - Warssam v Vandenbande: removal of a fence errected by a squatter was sufficient to stop time from running. - Hounslow London Borough Council: planting a screen hedge is not effective control iii. Written (express and implied) acknowledgement of the owner’s title - If a squatter writes to the landowner offering to let or purchase or aquire a licence, this is evidence that he regards the title of the owner as superior to theirs

12 - Acknowledgement must be made by the person in possession or their authorised agent, to the paper owner. - Acknowledgement must be written and signed. - Oral communications are not effective. Browne v Perry: otherwise it would become he said she said I said. The wirtten word speaks for itself - Errington v Clark: squatter writing and asking to purchase the property was deemed as a confession to the true owners rights, whether intentional or unintentional. It was held that all that is required to constitute acknowledgement is that the person in possession acknowledges that the paper title owner has the better title to the land - Lambeth London Borough Council v Bigden: a request that the council not sell the property amounted to admission that the council as the true owner had the right to sell it. iv. Squatter goes out of possession leaving property vacant - Agency Co Ltd v Short: where a squatter took possession and then abandoned possession this merely resets the clock

Registered vs. Unregistered Land:

Registered land under the LRA 2002 – sch 6: 1. After 10 years of adverse possession the squatter makes an application to the land registry to be registered as the owner of the property. There are some restrictions to the making of an application. 2. The Land registry must notify a number of persons, including the title owner. There is no duty on the registrar to check whether the notice has reached the relevant parties. All notified persons are given 65 buisness days to take action in response, either they can file a counter notice or ignore the correspondance thereby giving the adverse possessor permission to be registered after the 65 days. 3. If the title owner filesa counter notice, the claim of the squatter is rejected by the registry unless he states in his application that he is relying on one of the three exceptions under para 5 of sch 6: i. Estoppel – it would be unconcsionable because of estoppell to allow the registered proproetor to dispossess the applicant where some representation was made to the squatter and relied on that representation to his detriment and the circumstances are such tht the applicant ought to be registered as the proprieter. ii. Some other reason – catch-all provision. iii. Reasonable mistake as to the boundary lines. Zarb v Parry: parties disputed the boundary lines between their properties. The squatter must have reasonably believed that at least for 10 years ending on the date of application that the land belonged to him and the land in dispute must have been registered for atleast 1 year before the date of the application. 4. If the application is rejected on the basis pf the incompatibility of one of the three claimed exceptions, the paper owner has 2 years to evict the squatter. A mere letter appears to be insufficient. During those 2 years the squatter may make further applications but is prevented from doing so if he is a defendant, subject to a judgement or evicted in any proceedings related to the land. 5. If no action is taken by the paper owner for 2 years, the squatter will have another opportunity to be registered, however they will not have to go through the process again as the title owner will not be given another opportunity to defend themselves but rather will be sent notice giving 15 buisness days to reply where they may consent or object to the application. If they consent the adverse possessor becomes the registered owner. If they object and the objection has merit the registrar pursuant to s73(5) will give notice to the adverse possessor. If it cannot be settled by agreement between the two parties, the registrar will refer the matter to the tribunal for resolution.

Unregistered land and registered land where the period has been completed pre October 13th 2003: - There is a very small percentage of land that remains unregistered.

13 - Section 15(1) of the Limitation Act 1980: ‘No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accured to him, or if first accured to some person through whom he claims, to that person.’ - By the combination of this section and relativity of title (the law protects the relatively stronger claim in a bilateral contest), a claim to adverse possession could be founded. - In unregistered and registered land before 2002, the paper owner must commence proceedings before the conclusion of the 12 year period. - Limitation act 1980, sch 1, part 2, any property rights in unregistered land will elapse after 12 years (30 years for crown land and 60 years for foreshore land). As it relates to the time at which title is effective, for unregistered land, the squatter possession imediately entitles them to a fee simple. Thus at any one time 2 fee simple titles may co-exist; however it is the stronger title that will prevail (the squatters in the case of adverse possession for 12 years or the land owners if the squatter is evicted before that period of time. - Mount Carmel Investments v Peter Thurlow: the court accepted the only way that the clock could stop running against the paper owner was the commencement of legal proceedings. A mere letter demanding the return of the property is insufficient.

Adverse possession and its developing link to human rights:

- Where land is unregistered there can be no claim of a breach on human rights grounds as there is no state guarenteed title but rather ownership that is proven by possession and documentation. - Adverse possession and the statute barren limitation period regulate the use and ownership of land. This prevents the undertainty and unfairness which can arise at any time if such claims were not limited to specific time period. - In registered cases the title acts as a guarentee of ownership and it has been claimed that where there is a clear guarentee of the owner of the title, adverse possession should not be permitted to act against that piece of property. - Pye v UK: Adverse possession has been deemed compatible with human rights. It is a propertionat and legitimate response to public interest.

Key Provisions: Ø Article 1, Protocol 1 (into force by the Human Rights Act 1998): - Every natural person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Ø Article 6 – the right to fair trial - In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Ø Article 8 – The right to respect for private and family life - Everyone has the right to respect for his private and family life, his home and his correspondence. - There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for

14 the protection of health or morals, or for the protection of the rights and freedoms of others.

Chronology of cases:

Ø Pye v Graham [2000] - Chancery Court (Neuberger J) - This is obiter but it is significant as it relates to the view of the court. - ‘A frequent justification for limitation periods generally is that people should not be able to sit on their rights indefinitely, and that is a proposition to which at least in general nobody could take exception. - However, if as in the present case the owner of land has no immediate use for it and is content to let another person trespass on the land for the time being, it is hard to see what principle of justice entitles the trespasser to acquire the land for nothing from the owner simply because he has been permitted to remain there for 12 years. - To say that in such circumstances the owner who has sat on his rights should therefore be deprived of his land appears to me to be illogical and disproportionate. Illogical because the only reason that the owner can be said to have sat on his rights is because of the existence of the 12-year limitation period in the first place; if no limitation period existed he would be entitled to claim possession whenever he actually wanted the land. - Of course one can well see the justification for saying that the owner should not be entitled to recover damages for trespass going back more than six years; that involves rather different considerations. I believe that the result is disproportionate because, particularly in a climate of increasing awareness of human rights including the right to enjoy one's own property, it does seem draconian to the owner and a windfall for the squatter that, just because the owner has taken no steps to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever.’ Ø Pye v Graham [2002] - House of Lords - Note that the Human Rights Act did not apply in this case as it came into force on October 2, 2000 before which the 12 year period of adverse possession had been completed. - On the matter of human rights (though obiter), Lord Bingham of Cornhill (at [2]) noted: ‘But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it.’

Ø Beaulane Properties Ltd v Palmer* [2005] EWHC 817 Chancery Division - This decision was given post-House of Lords decision in Pye but three months prior to the decision of the European Court of Human Rights as the Human Rights Act 1998 was in force at this time. - The issue was whether the operation of section 75 of the 1925 Act, read together with section 17 of the 1980 Act, engaged article 1 of the First Protocol, and if so whether that article was breached. - The court held since the practical effect of the relevant provisions was to deprive the owner of land of all his rights to it and of any means, whether by taking direct action or going to law, of recovering his possession of it, and thus to transfer the right to possession and title to the trespasser, it was properly to be characterized as a deprivation of possession within the meaning of article 1 of the First Protocol; that a system of law under which the owner of land could by mere inadvertence lose title to it without compensation was a disproportionate interference which could not be justified by reference to any public or general interest; and that, accordingly, the claimant’s loss of the disputed land in accordance with section 75 of the 1925 Act was incompatible with article 1 of the First Protocol . - The challenges with this decision were discussed by Dixon in ‘Adverse Possession and Human Rights’ [2005] Conv 345. See if you can find the three main issues.

Ø J A Pye Ltd v UK [2005] - Chamber of the European Court of Human Rights: - The court raised three questions. How did they answer these three questions?1. Did the statutory provisions on adverse possession amount to an interference by the state of the applicant’s rights under the Convention?2. Could the law of adverse possession be justified on the ground of general interest?3.

15 Did the rules of adverse possession produce a proportionate result? Ø J A Pye Ltd v UK [2007] - Grand Chamber of the European Court of Human Rights - Once again, the court discusses three key questions. Did they agree with the answers given by the Grand Chamber? Ultimately, was such a law within the state’s margin of appreciation/margin of state discretion?1. Did the statutory provisions on adverse possession amount to an interference by the state of the applicant’s rights under the Convention? - 2. Could the law of adverse possession be justified on the ground of general interest? 3. Did the rules of adverse possession produce a proportionate result?

Ø Ofulue v Bossert [2008] -Court of Appeal - Note that though the case was appealed to the House of Lords decision is relevant for our purposes - In reading this case, seek to answer these key questions: Two approaches were presented before the court – adopt the Pye approach that it was not inconsistent OR reject the Pye approach and decide each case on its own facts. Which approach did the court adopt?

Adverse possession against tenants:

- Fairweather v St Marylebone Property Co Ltd: HOL held that the tenant could still surrender the lease, thus returning control to the landlord as the landlord-tenant relationship subsisted for the duration of the lease. The implication is that the tenant of unregistered land cannot claim that the time has run against the freeholder, unless the property has reverted to the freeholder and he has taken no action. As it relates to registered land, once the time has run against the tenant, the adverse possessor is entitled to be registered as the owner [recall that such a claim would undergo notice requirements discussed above – at this point, the relevant party (including the landlord and tenant) would be made aware and therefore object to the application]. There is no possibility of surrender at this point, as the tenant no longer has an interest to surrender. On another point, relevant to tenants, the presumption that any land adversely possessed close to the leased premises is done on behalf of the landlord was confirmed in Tower Hamlets LBC v Barrett .

Adverse Possession and Overiding Interests: - A further issue ot be considered is where a person holding a successful adverse possession claim over registered land alleges that he holds an overiding interest. - Schedule 1 – unregistered interests which override a first registration: interests of a person in actual occupation. (2) an interest beloning to a person in actual occupation, so far as relating to land of which he is in actual occupation Ø Schedule 1 – Unregistered interests which override a First Registration - Interests of persons in actual occupation. - (2) An interest belonging to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for an interest under a settlement under the Settled Land Act 1925 Ø Schedule 3 – Unregistered interests which override Registered Dispositions - Interests of persons in actual occupation (2) An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for— (a) an interest under a settlement under the Settled Land Act 1925 (c. 18); (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) an interest—(i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and(ii) of which the person to whom the disposition is made does not have actual knowledge at that time; (d) a leasehold estate in land granted to take effect in possession after the end of the period of three months beginning with the date of the grant and which has not taken effect in possession at

16 the time of the disposition. - Thus, an interest in this category will override (or take priority over) a registered disposition if: 1. The person claiming the right has a proprietary interest in the land (e.g. a fee simple at common law – this is the interest that would be held by an adverse possessor)AND 2. That person was in actual occupation of the land. - The interest will not be overriding where when the land was purchased, the facts that the person was in actual occupation was not obvious on a reasonably careful inspection of the land and the purchaser did not know about the interest or the person in actual occupation did not disclose his interest in the land if asked and it would have been reasonable to do so.

17

Unregistered Land

The context of unregistered land: - Unregistered land is land where title has not been registered at the land registry. Proof of ownership therefore comes from an examination of the title deeds relating to that land. - It does not mean that the interests relating to the land can’ be registered – they have their own system. - Identification of any third party proprieatry interests burdening a piece of unregistered land cannot be discovered by a search of the land register. Rather an examination of the title documents and various registers, the most important of which is the land charges register is required to dicover their existance. - A search of the land charges register is made against the names of previous owners of the land, not the property address. A purchaser is bound by all land charges he did not discover, either by failing to search against all the relevant names. - Interests covered by the Land Charges Act 1972 must be registered as the appropriate land charge to bind a purchaser. Failiure to register such an interest appropriately means that the interest will not bind certain types of purchasers of the land. - A purchaser can take free of a beneficial interest under a trust in unregistered land where they successfully overreach that interest. - Where a purchaser has failed to overreach a beneficial interest under a trust, enforcement of that interest against them depends upon the doctirne of notice. - Enforcement of pre-1926 restrictive covenants and equitable easements, and interests arising by estoppel, is also governed by the doctrine of notcie.

Interests in unregistered land: Ø Legal interests – bind the world: - E.g. easement, lease, mortgage - Generally bind anyone who comes to the land. - Normally created by deed - The exception is the puisne mortgage, which requires registration as a land charge to be binding. Enforement of this type of interest depends upon registration as a land charge. Ø Equitable interests – bind everyone apart from the bona fide purchaser for value without notice: - They are not automatically binding on anyone who comes to the land. Enforcement depends upon the type of interest. - Must be registered as the appropriate land charge under the LCA 1972. Registration of the interest constitutes actual notice of that interest - Where the interest has not be registered appropriately it will be void against certain types of purchasers, whether the pruchaser has knowledge of the existance of the nterest or not - The holder of an interest must register it as a land charge by making an application to the land registry. The interest should be registered as a land charge against the name of the estate owner at the time the interest is created and over whose estate the interest is to be exercised. The entry on the land charges register records the nature of the interest to be protected and the name of the person who claims to hold that interest. - Land Charges Act 1972: interests registerable as land charges governed by the rules found in the act. - Law of property act 1925 ss 2 and 27: interests capable of being overreached, governed by conditions for overreaching found in this act. - Where the interest is neither registerable as a land charge nor capable of being overreached, or where capable overreaching has not been successful, enforcement depends upon the doctrine of notice.

18 - The purchaser should conduct a search of the land charges register to discver any land charges that have been registered and thus uncover any interest exercised over the land about to be purchased which will be binding unpon them. - Where binding land charges are discovered after the pruchaser has entered into a valid contract to purchase s 24 LPA 1969 entitles the purchaser to withdraw from the contract, provided they did not know of the existance of the land charge at the time of entering into it.

Conveyancing procedure: - Since title to the land has not been entered on an official register, which a purchaser can take as being an accurate record of ownership, a purchaser of unregistered land must require the vendor to prove their ownership of land. This is a time consuming and often mistake ridden process of examining title deeds relating to that land. - Such an examination must go back 15 yearssince the last dealing with the property ((s 23 Law of Property Act 1969) so that the purchaser can establish a ‘good root of title’. - When purchasing unregistered land, legal title will pass upon execution of a valid deed. - The deed used to convey legal title of unregistered land is known as a ‘conveyance’.

Transactions in unregistered land: - Law of property Act 1969 s23: changed the root of title from 30 – 15 years - Law of property Act 1969 s 24: protected with regard to land charges. Reduced the risk for compulsion on the buyer to buy under a specifically enforceable contract. Ø Land Charges Act 1972 - EQUITABLE INTERESTS IN UNREGISTERED LAND MUST BE REGISTERED AS LAND CHARGES - Deals with the registration of equitable interests that exist in unregistered land - Registering a land charge serves as actual notice of the interest registered - Failiure to register a laNd charge for an interest that is capable of registration will render that intrest void. - LCA 1972 S3(1): A land charge shall be registered against the name of the estate owner intended to be affected. - Oak Co-operative Building Society v Blackburn: established that the equitable interest holder must register tehir interest against the name shownon th title deeds, not name used in other contexts – such as a nickname - Importance of a proper search, and impact of a defective search: Horill v Cooper - Different classes of land charge - Irrelevance of notice: Midland Bank v Green (a father gave his son the option to purchase the family farm. The estate contract was not registered by the son as a land charge. The afther laeter sold the farm to his wife for £500 despite this being less than the value of the land, and the wife having knowledge of the unregistered estate contract when she made the purchase, she was held to take free from the unregistered interest. Since the interest had not been appropriately registered, it would not bind her. The fact that she knew the interest existed was deemed irrelevant. The court also felt it innapropriate to consider the adequacy of the consideration provided.) Lloyd’s Bank v Carrick - Law of Property Act 1925 s198

Interests capable of being overreached: - Overreaching provides a way for purchasers to protect themselves against the undiscovered unregisterable interests of beneficiaries under a trust. - Essentially relates to the beneficial interest under a trust. - Not being capable of registration as a land charge, their enforcement against a purchaser of unregistered land primarily depends upon application of the conditions for overreaching laid down in ss 2 and 27 of the lPA 1925.

19 - City of London Building Society v Flegg: a property was purchased by a marreid couple with contributions provided by the wifes parents. The parents thus acquired a beneficial interest in the property. The property was mortgaged to the building society which later sought repossiession. The building osicety was not bound by the parents beneficial interests, having successfully overreached those interests when advanicng mortgage monies to the married couple. Successful overreaching requires payment of monies to atleast 2 trustees. Once overreached, beneficial interests will not bind a purchaser, reagrdless of any actual occupation of the beneficiaries and any notice the purchaser have of those interests. If it is capable of being overreached the purchaser takes free from the interest. - State Bank of India v Sood - Trusts of Land and Appointment of Trustees Act 1996

Non-overreachable, non-registerable interests: - Whether the interest binds the purchaser depends upon the doctrine of notice. - Interests that are governed by the doctrine of notice are: overreachable interests that have not been successfully overreached, restricitve covenants enetered into between freeholders of land and created before january 1926, equitable easements created before jan 1926, and interests arising by estoppel. - The doctrine of notice works on the basis that an interest will only bind a person if he is not a bona fide purchaser of a legal estate for value without notice - Kingsnorth Finance Co v Tizard: constructive notice of unregisterable interest - Pre-1926 interests - Chargin Orders - Estoppels

20

Registered Land

- Regitered land is land where the title has been registered at the land registry. - Land = money = power. Where there is power there is also a need for control. There is now compulsory regstration of land. - The LRA 2002 revolutionised the registration of land. It was a joint project between th eland registry and the law commission which took many years to produce but it s stute of clarity and evolution. There is a shift in emphsis from possession to title. The basis of title is the register itself. - The objective behind registered land is to create a register which accurately reflects the state of registered property, both in terms of its current owner, and third party proprietar interests affecting it. - In theory a purchaser need look no further than the register when making inquiries about a piece of registered land. - In relaity the presence of overriding interests which bind a purchaser despite appearing no where on the register, means that a purchaser must look beyond the register. - Unregistered land can be brought onto the register either by the owner voluntarilying applying to be registered or compulsorily upon the occurance of certain events notably sale of the freehold, he grant of a lease of more than 7 years, or the grant of a protected first legal mortgage. - Failure to register title when required can lead to the loss of legal title to that land. - Once registered, subsequent disposals of the frrehold, or leasehold of more than 7 years must be completed by registration to confer legal title (s27 LRA) - When registering title to land the specific class of title registered will reflect the strength of that title; with the strongest and most common class registered being absolute title. - In principle third party proprietary rights will only affect a purchaser of registered land where they have been entered on the register, typically as a notice but sometimes as a restriction. - Where interests have not been correctly entered on the register they may still bind a purchaser of registered land if they meet the requirements of an overriding interest under sch 3 para 2.

Aims of registration: - It has always been the intention that all land in England and Wales become registered. - Facilitate conveyancing, to simplify the process by which land is transferred from one party to another. - Reduce risk to purchaser - Protect third parties - If interests in land are laid out in a clear coherent document, the process of selling land is far easier. It reduces the risk a purchaser faces when they acquire an interest in land – removes fear a third party will emerge and stake a right to the land. - The LRA 2002 sepcifically aims to reach a stage of e-conveyancing. - The LRA 2002 is transaction driven – it focuses on the easy trnsfer of land and property rights - The Act surfaces a number of policies through changes of substantive law: 1. As many estates in land as possible to become registered 2. As many 3rd party rights as possible recorded on the register 3. Minimise the number and effect of 3rd party proprietary rights that can be effective against the new owner of land even without being registerd 4. Eventual e-conveyancng where creation of most proprietary rights in land cannot occur unless this is acheibed by an electronic entry on the e-register - Some of the practical goals of reistration of land:

21 o Make land more marketable by reoving ‘root of title’ – easier to search a title on a database – also less expensive o Remove the risks for purchasers buying unregistered land – registration ensures the land o Ensures the purchasers know of all other rights and interests against the land on purchasing o Enables the purchaser to buy land free of certain types of interest over that land.

The three principles: Ø The mirror principle - Register is an accurate reflection of the land, not only as to who owns the land, but also any third party interests affecting it. - This is tainted by the existance of overriding interests – interests that override registered dispositions – therefore in practice a purchaser of regiestered land must conduct further inquireies. Ø Insurance principle - Optimistic but underlying motive of the Act is to insure those who suffer any loss from land transactions regarding land which is duly registered - If the register is wrong there is the guarentee of insurance. - The state guarentees the accuracy of the register in terms of who owns land. - S103 LRA 2002 – the state wold compensate anyone who suffered a loss due to any errors present in the register. Ø Curtain principle - You are only affected by the things you can see in front of the curtain. - Purchasers are not required to look behind the register. - This particularly relates to trust property and the overreaching process by which a purchaser can take land free from any beneficial trust interests.

Structure of the registers: - 3 types of register: 1. property register: this describes the land, the nature of the estates registered, and any third party interests benefiting the land, for example a right of way. 2. proprietorship register: this names the registered proprietor, states the title that has been registered, and contains any restrictions which limit the way in which a registered proprieter can deal with the land. 3. charges register: contains notices relating to any interests that burden the land for example restrictive covenants, mortgages etc. Ø registerable with own title: - some estates and interests are ‘substantviely registered’ so that they acquire their own title number and file: o the freehold estate o leasehold estate with more than 7 years to run o a rentcharge o a franchise o a profit a prendre in gross Ø Registerable on a title: - Easements and profits (LRA 2002 ss11-12) - Legal charges (Land registration Rules 2003, r22 and r34) Ø Upgrading title: - LRA 2002, ss62-63

First registration: - Registration of title for the first time can take place in the following circumstances: Ø LRA 2002, s4 – compulsory:

22 - In respect of a frehold estate, and a leasehold estate with more than 7 years unexpired, certain events will trigger the need to compulsorily register title. Such events include: o The transfer (for consideration, by way of a gift, in pursuance of a court order, or by personal representatives upon death) of an unregistered legal estate be it freehold or leasehold with more than 7 years left to run. o The grant of a lease for more than 7 years (for consideration, by way of a gift or in pusuance of a court order) o The grant of a lease of any duration to take effect in possession after the end of a period of 3 months beginning with the date of the grant. - Walker v Burton: registration and manorial rights; the ridiculous archaic nature of english land law. - Peffer v Rigg: ultimately notice doesn’t play a part in registered land. - It is compulsory to register land on the sale of unregistered land. - Disposition of interest in land requires registration. Ø LRA 2002, s3 – voluntary: - Unregistered legal estate - Rent charge - Franchise - Profits prendre in gross Ø LRA 2002, s7(2)(b) – effect of non-registration within 2 months of triggering event: - The legal estate does not pass to the purchaser, they will only acquire beneficial interest under a trust. Ø LRA 2002, s71 – general duty to disclose any unregstered interests - Registerable dispositions bind everyone, Ø Process: - Registration should be applied for within 2 months beginning with the date of the triggering event. - Upon receiving an aplpication for registration the registrar will make vairous enquiries so as to determne the class of title to register – there are no means to appeal this decision. - Persons with interests in land who may be affected by first registration have the ability to lodge a caution against first registration. This meand the registrar will alert the cautioner when registration has been applied for, the then have 15 working days to object. - Late registration will be accepted with costs being the responsibility of the person who failed to register on time.

Registration on subsequent transactions: - S27(2) LRA: Once title has been registered, a subsequent transfer of that registered estate and the grant of a lease of more than 7 years must be completed by registration so that the transferee is registered as proprieter. - Failure to do so means the transfer will not operate at law.

Registration of titles: - Registration of titles is at the heart of registered land - Walker v Burton: If you are on the register you have title Ø Classes of title that can be registered: - When title is registered it is important to show the strength/validity of the title. - The register must accurately reflect the state of title. - The sifferent classes of title are laid down in ss 9 and 10 lRA 2002 with consequences noted in ss 11 and 12. o Absolute title: the strongest title a person can be registered with. It indicates that that person has a better right than anyone else to the land and is usually only registered by the registrar in circumstances where there is no possibility of a challenge. A person with absolute title takes the lannd subject only to interest entered on the register and interests that overide the register.

23 o Possessory title: where registration is based upon possession of the land, typically as an adverse possessor, rather than the provision of title deeds. The registrar guarentees title as far as dealings post first registration are concerned. o Qualified title: registered where there is a defect with the title, for example a lost deed, or where the registrar has a reservation about the title that cannot be ignored. o Good leasehold title: in respect of leasehold estates, where the registrar is happy with the title granted to the tenant under the lease but not as to the title of the lessor. - S 62 LRA 2002, there is the possibility of upgrading a less than absolute title either by registrar upon his own initiative, or upon application.

Registerable dispositions: - LRA 2002, s27: registerable disposition takes effect only in equity - LRA 2002, s29(24) Short Leases (less than 7 years) less than 3 years can’t be registered.

Third party proprietary interests affecting the land: - There is general isistance that 3rd party property interests should be entered on the register against the estate they burden - S 32 LRA 2002: notices are entered on the charges section of the register relating to the land affecte by the interest. Ø Interests entered on the register: - Consist of proprietary interests which should have been enetered on the register concerning the land to which they relate, in order ot bind a purchaser of that land. - Purchaser can inspect the register to discover the interests that burden the land. - Holders of such proprietary interests have the certainty that by entering their interest on the register, they have protected that interest and made it enforceable against anyone who may come to the land. Ø Interests entered as a notcie: (by the registrar) - Some interests must be registered by a process of registration, rather than the process of registering title. - Such interests include: o Expressly created easements equivelent in duration to one of the legal estates o The grant of a legal charge - Until registration takes place the interest will take effect in equity rather than law. - When a registrar recieves an application to register one of these interests, the registrar must enter a notice on the charges section of the register. Ø Interests entered as a notice: (by the holder of the interest) - S 33 LRA 2002 lists the interests that can be protected this way: o Interests under a trust o Leases of 3 years or less taking effect in possession o Restrictive convenants between a landlord and tennant. o Estate contracts o Restrictive covenants between freehold estate owenrs o Equitable easements o Rights to occupy the family home o Estoppel rights Ø Interests entered as a restriction: - Beneficial interests under a trust are dealt with this way. - S40 LRA 2002: The restriction will appear on the proprietorship section of the register relating to the land affected by the interest. - The restriction limits the way in which the registered proprietor can deal with the property. - It lays down a specific procedure to follow when disposing of the property. Unless the procedure is followed the registrar will not register the disponee of the property. - It stipulates that the disposal of the land complies with the mechanics of overreaching.

24 Ø Overreaching: - A mechanism by which a purchaser of trust land can take land free from the beneficial interests under that trust. It can only apply to thise interests cpable of existing without being attahced to the land; predominantly beneficial interests under a trust.

Overriding interests: - Third party interests affecting a piece of land which will bind a purchaser despite not appearing anywhere on the register. - this category of interests goes against the mirror principle - this variety of interests are criticised as they are binding without the purchaser’s knowledge. - when title to land is being registered for the first time, bringing the land into the registered system, interests listed under sch 1 will override registration, including: o legal leases of 7 years or less in duration o interests of persons in actual occupation o legal easements or profits - interests that override under Sch 3 LRA 2002 are by far the most siginificant. Such interests are divided into 3 categories: o Sch 3 para1: incorporates legal leases of 7 years or less. Autonomtically bind a purchaser of land without the need for nay further conditions to be met. § Legal leases over 7 years must have been substantively registered to make them legal. They will automatically be entered on the register of the freehold land to which they relate., so purchaser of that land will be bound by them. § Equitable leases must have been enetered on the register as a notice by the holder of the interest in order to be binding upon the purchaser, where the holder has failed to do so, he may be able to enforce the interest against the purchaser where the requirements under sch 3 para 2 are established. o Sch 3 para 2: an interest will be binding upon a purchaser unedr this provision where the holder of the interest can establish: § The interest he holds is a proprietary one, be it legal or equitable § The interest existed at the time of the disposition § They were in actual occupation of the land to which the interest relates and either: • The occupation would be obvious upon a reaosnably careful inspection of the land • Even if not obvious, the purchaser had actual knowledge of the interest Ø Actual occupation para 2 sch 1: - The most important overriding interest. Broken down: 1. Interest must be enforceable against the land immediately before registration for it to be overriding. If proven otherwise by the register it is not overriding 2. The person claiming to have an overriding interest must be in actual occupation at the time th eapplication to register is submitted 3. Any proprietary interest can be overriding 4. It is the specific fact of actual occupation that eleveates the interest to an overriding interest and nothing else± the interest only overrides in relation to the land, which he is in actual occupation. - An overiding interest under para 2 sch 1 is an ‘interest beloning to a person in actual occupation, so far as relation to land of which he is in actual occupation, except for an interest under the Settled land Act - A person claiming an overriding interest must prove they hold a property interest in the lad which is about to be first registered and he is in actual occupation of it. - some physical presence on the land which itself has a degree of permenance and continuity. - Temporary absences, even at the exact time of the disposition may not prevent a finding of actual occupation so long as the reason for absence can be justified.

25 - Chhokar v Chhokar: absence due to giving birth in hospital was fine. Temporary absence from the property will not prevent a finding of actual occupation for the purpose of sch 3 para 2 provided there is some physical evidence of occupation coupled with the intention for the temporarily absent occupier to return. - Stockholm Finance v Garden Holdings: absence from the property for over a year, combined with never having resided in the property led the court to find no actual occupation. - Linklending v Bustard: persistant intention to return to the property, where absence was due to being in a mental insitution help a finding of actual occupation. - Lloyds Bank v Rossett: the nature and condition of the land which is being claimed as occupied may be significant in determining actual occupation. Semi-derilict building. - Actual occupation must be established at the time of the transfer of land: Abbey National BS v Cann: a property was purchased with the aid of a mortgage by cann who was going to occupy it with his mother. On the day of the purchase, and thus when the charge in favour of the building society was being created, the mother was out of the country. When her son defaulted on the mortage payments and the building society sought possession it was held that the mother could not enforce her interest in the property as an overriding interest under sch 3 para 2 because sepite her being in actual occupation at the time of registration, the relevant time was held to be the date of transfer. o Sch3 para 3: impliedly created legal easements will bind a purchaser under this provision provided: o The person to whom the disposition is made actually knows about their existance o The interest would be obvious upon reasonably careful inspection of the land o The interest has been exercised in the year imediately preceding the disposition.

Priorities: Ø LRA 1925 system: - Under the LRA 1925 there were 4 ways of protecting minor interests (these are still relevant as the LRA 2002 is prospective only) 1. Restrictions: a limit on the power of the owner to deal with the property (e.g. the registered proprieters cannot transfer the whole or part of the estate without the consent of X) restrictions appear on the proprieatership register. 2. Inhibitions: are entered by the court or the registrar to prevent the occurance of a specified event. Inhibitions are very rare as the consequences are serious. An example would be when the registered proprieter is bankrupt, when the court may impose an order precluding any dealings with the property – no leases, sales, creation of interests 3. Notices: a specific entry on the charges register protecting a particular interest. As the registered proprieters land certificate had to be filed to allow the notice to be entered, notices were entered with consent, so no dispute as to the nature of the right or the entitlement to the right could arise. A notice establishes priority for the interest itself. 4. Caution: a caution is a protective entry shown in the proprietorship register. Cautions are loged on a non-consensual basis, and are often used when the registered proprieter does not consent to registration of a notice. A caution protects a claimed interest in land by stopping any further dealings with the land until the cautioner has been notified. If the cautioner responds, the registrar will determine any dispute and either remove the caution or include a suitable entry in the register to give effect to the interest. It does not validate or give priority to the interest. Cautions may be loged against first registration or subsequent registration. Clark v Chief Land Registrar (caution fialed to protect priority).

Notices: - LRA 2002, s32(1): ‘an entry in the register in respect of the burden of an interest affecting a registered estate or charge’. - types of notice:

26 1. LRA 2002, s 34: Agreed Notices 2. LRA 2002, s 34(2) Unilateral Notices 3. LRA 2002, s 33: notice of interest that cannot be protected - Once a notice is entered a purchaser will be bound by it and cannot deny the interest protected - Agreed notice: valid claim by the registered proprieter - Unilateral notice: can be without consent used when there is hostility amongst parties

Restrictions: - LRA 2002, s 44: restriction may be applied for with consent, or by an application to the registrar requiring the exercise of the Registrars discretion ‘where the applicant has sufficient interest in the entry of the restrcition.’ - Two forms of restriction: 1. Standard 2. Non-standard - Trusts

LRA 2002 Priority Regime: - LRA 2002, s 28: basic rule – if an interest is registered then its priority is unaffected by dispositions of the estate, and priority is determined by date interest is created. - LRA 2002, s29(1) – where disposition for valuable consideration, priority is postponed for any unprotected interest affecting the estate immediately before the registered disposition. - LRA 2002, s 29(2) – a protected interest is on subject to a notice in the register (or is an overriding interest) - LRA 2002, ss77, 72: land registration (official search) Rules 1993, rr 2-3: the official search. Parkash v Irani Finance Co (state of register, not the seach that matters) - LRA 2002, s 58 – legal interest only vests on registration - LRA 2002, s 65 and sch 4 – rectification - LRA 2002, sch 8 – indemnification

Effect of Fraud and Error - Baxter v Mannion: adverse possession mistakenly registered; true owner succeeded with rectification - Walker v Burton: registration of title in error, but rectification process not met, therefore title was not lost - Swift 1st Ltd v The Chief Land Registrar: effect of forged registration and indemnity

Unregistered interests:

- Strand Securities v Caswell: Lord Denning ‘the welter of registration’ - LRA 2002, s 29(3): an easement ceases to be overriding if registered, and remains so even if later it is removed from the register.

Interests of persons in actual occupation: - An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for— (a) an interest under a settlement under the Settled Land Act 1925 (c. 18); (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) an interest— (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time;

27 (d) a leasehold estate in land granted to take effect in possession after the end of the period of three months beginning with the date of the grant and which has not taken effect in possession at the time of the disposition. - Mathematics of overriding interests: right in land + actual occupation – inquiry = overriding interest Ø Nature of interest: - National Provincial Bank Ltd v Ainsworth: (overriding interests and ‘interest in land’) - Webb v Pollmount Ltd: (estate contract) - Paddington Building Society v Mendelsohn: (estoppel) and now also LRA 2002, s 116 - Malory Enterprises v Cheshire Homes: (right to rectification) - Thompson v Foy: (right to have transaction set aside due to undue influence) - Chaudhary v Yavuz: (easements not overriding interests) Ø Timing - Abbey National v Cann: (mortgages and scintilla temporis) Ø Nature of Occupation - Strand Securities Ltd v Caswell: (does ‘actual occupation’ need to be discoverable?)a father failed to show he was in actual occupation by showing that his step daughter lived there. Although he used the property as a London base, such use was infrequent and he in no way treated the property as his home. Actual occupation for the purpose of sch 3 para 2 cannot be established through occupation by another unless it can be shown that other is your agent. - Hodgson v Marks: (does ‘actual occupation’ need to be ‘apparent’?) - Williams and Glyn’s Bank v Boland: (overriding interests and ‘actual occupation’) a bank was found to be bound by a wifes beneficial interest under a trust. Having advance the mortgage monies to just one legal owner it had not successfully overreached the beneficial interest and this coupled with the fact that the wife was in actual occupation of the property gave her an overriding interest binding on the bank. Successful overreaching requires payment of monies to at least 2 trustees. Where a beneficial interest has not been overreached, and the interest holder is in actual occupation of the land, it will bind a purchaser as an overriding interest.

Co-ownership:

Types of co-ownership: - Law of Property Act 1925 – policy of marketability of land - Trusts of Land and Appointment of Trustees Act 1996 - Joint tenancy: each party is entitle to the whole property: there are no individual ‘shares’ - Tenancy in common: each party has an undivided share of the property

Joint tenancy: - Right of survivorship – Gould v Kemp: right to survivorship of a joint tenancy takes effect upon the death of one of the joint tenants. Rights transfer to the survivor before the will takes place. Each party to the joint tenancy is entitled to the whole. - AG Securities v Vaugham: There are 4 unities that must exist in order for there to be a valid joint tenancy: 1. Unity of possession 2. Unity of interest 3. Unity of title 4. Unity of time

Joint tenancy of legal estate: - LPA 1925, ss34 and 36: all legal joint tenants are trustees Ø Tenancy in common: - No right of survivorship - Only one unity (possession) need be present

28 - LPA 1925, s1(6): tenancy in common can only exist in equity. At equity you can sever a joint tenancy and turn it into an equity in common. - The property is shared - You can dispose of your interests by means of a will Ø Legal and equitable ownership - Owners of legal title are trustees under joint tenancy - LPA 1925, s 34(2) maximum of 4 trustees of land and only under joint tenancy for legal ownership of land. Land needs to be easily bought and sold. The marketability of land is decreased when there are many co-owners. - Owners of equitable title, held under the trust, may be either joint tenancy or tenancy in common. TLATA 1996, ss 3-4 shifted from the old position of a trust for sale to a trust of land. No longer a statutory obligation to sell the land, there is a right for an interested party to request an order for sale. There can be as many equitable owners as desired within reason. - Determining what sort of co-ownership of equitable ownership. “Equity follows the law” the initial starting presumption is that the equitable interest is the same as the legal interest (not satisfactory in many cases). - Express words: Goodman v Gallant (if the parties use express words in the creation of the trust, the equitable interest is held under a tenancy in common – this will suffice.) - Intention may not expressly state, must determine what was intended. - Surrounding circumstances: Stack v Dowden (parties had never married and had maintained separate bank accounts and rigid division between income and outcome. Judge concluded separateness demonstrated the land was held in tenancy in common rather than joint tenancy – male got less than he had hoped for); Laskar v Laskar [2008] EWCA Civ 347; Jones v Kernott [2011] UKSC 53; Geary v Rankine [2012] EWCA Civ 555; Chaudhary v Chaudhary [2013] EWCA Civ 758 - Cases that consider whether the land was held by joint tenancy or tenancy in common – normally female partner trying to demonstrate interest.

Rights and Obligations of legal owner of a trust of land: - TLATA 1996, s 6 trustee has the powers of the absolute owner – managerial power. The power is subject to the provisions of the act and the trust instrument. - TLATA 1996, s 9 powers of the trustee can be delegated. - TLATA 1996, s 10 demonstrates limitations of the powers of the trustee. Power to sell land can be limited by means of instructing trustee to inform owner they intend to sell land. - TLATA 1996, s 12 provides a beneficiary with the right to occupy trust property if purpose of trust property is to allow beneficiary to occupy land. Shift towards recognising the value of home as a discrete concept. Living somewhere is important not merely having the financial rights. - TLATA 1996, s 14 provides court with powers of intervention. Power to order sale of trust property - TLATA 1996, s15 factors court must take into account when determining whether they can intervene – for example children living in the property. Protection of home is illusory at best as the rights of occupiers are no more important than the rights of creditors. - Insolvency Act 1986, s 335A in cases where there is bankruptcy this section is to be used rather than s15. - Manchester CC v Pinnock; Hounslow LBC v Powell: cases show that art8 can defeat the enforcement of a proprietary claim, but not forever. Can delay enforcement temporarily.

Severance: - Statutory: Law of Property Act 1925, s 36(2) give greater notice of intention to severe joint tenancy. - Burgess v Rawnsley - Re 88 Berkeley Road: the key is to send notice. Unilateral notice that is not received is still sufficient. - Kinch v Bullard: notice sufficient even intercepted and destroyed without the other party knowing. - White v Whit: a previous oral agreement between parties not to sever would be determinative and controlling of the issue.

29 - Common Law: Williams v Hensman: common law mechanism for severing joint tenancy. Mutual agreement will suffice to sever a joint tenancy. Does not need to be formal nor in writing nor enforceable.

Licences:

Defining a licence:

- The issue of licences is usually raised in the context of whether a right is a licence or a lease. - A tenant holds an estate in land and this carries a range of rights which are withheld from parties under a mere licence. - A licence is often defined as where a party gives another party permission to do something on their land. - Thomas v Sorrell: ‘a dispensation or licence property passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, without which it would have been unlawful.’ - Mcfarlane confirms this approach where he considers a licence in the context of an act that would usually be wrongful but which is converted to a permissable act on the basis of permission granted. - Generally no formalities are requiredfor the creation of a licence in and of itself as it does not, according to section 53(1)(b) of the Law of Property Act 1925, constitute an interest in land; however if there is some other right coupled with the licence formalities may be required for the creation of that right even though a licence is also attahced.

Licensor v licensee: - A licensor is the person who grants the licence while the licensee is the person receiving the benefit of the licence.

Personal v proprietary right: - A personal right is one that binds only the origional parties to the agreement while a proprietary right binds any person who subsequently takes an interest in the land.

Types of licence:

- Take a variety of forms. - Hurst v Picture Theatres Limited: attendance at a cinema - Colchester and East Essex Co-Operative Society Ltd v Klevedon Labout Club and Institute LTD: parking a car. - Henrietta Barnett School Gverning Body v Hamstead Garden Suburb Insitute: the running of a school. - Kewal Advertisements Ltd v Arthur Maiden Ltd: the erection of an advertisement.

Bare licence: - A licence that is granted without payment. - There are no formalities to comply with. - This is a personal right. - Such licences are merely gratuitous as if any charge were made for them they would be contractual. - The scope of such licences is limited to the very thing they have been granted for. - The Calgarth: Scrutton LJ said: ‘when you invite a person into your house to use the stair case, you do not invite him to slide down the banisters, you invite him to use the staircase in the ordinary way it is used. - They can be created expressly (invitation to a party) or impliedly (permission for a mailman to leave milk on the doorstep. - R v Sunderland City council: considered whether a bare licence could be created impliedly. It was accepted that a bare licence can arise by implication from circumstances or conduct.

30 - Robson v hallett: example of permission to access a driveway. 2 defendants who were the occupant of a home appealed against their convictions for assaulting certain police officers in execution of their duties where one of the police officers had been invited into the home lawfully. When asked to leave by the father of the defendants the police officer headedd for the door but before he could leave one of the sons jumped on his back. On the ground of the occurance of an implied licence, Diplock noted that there was no authority on this matter as it has neve been seen as something that is open to question. These principles are applicable to any stranger and not limited to police as the police did not attend the premises with a warrant. Had they had a warrant they would not have needed the implied licence. ‘The first is this, that when a householder lives in a dwelling-house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business. Such implied licence can be rebutted by express refusal of it, as in this case the Robsons could no doubt have rebutted the implied licence to the police officers by putting up a notice on their front gate “No admittance to police officers”;; but that was not done in this case. ‘The second proposition is this, that when, having knocked at the front door of the dwelling-house, someone who is inside the dwelling-house invites the person who has knocked to come in, there is an implied authority in that person which can be rebutted on behalf of the occupier of the dwelling-house to invite him to come in, and so licence him to come into the dwelling-house itself. In the present case it was the son, and not the father who was the occupier, who invited Sergeant McCaffrey to come in. In those circumstances Sergeant McCaffrey, whilst in the dwelling-house on the invitation of the son, was no trespasser.’

Licence coupled with an interest: - This is an interest where a property right is granted by the licensor to the licensee which necessitates the licensee to go onto the licesors land to exercise this right. This is generally known as a profit-a-predre: profit is a benefit and prendre means to take in French. - These include profit of piscary (a right to catch and fish) and profit of estover (right to take wood), among others. - Hounslow london Borough Council v Twickenham Garden Developments: confirmed ‘a licence to go on land to sever and remove trees or hay, or to remove timber or hay that have already been severed, are accepted examples of a licence coupled with an interest.’ - James Jones and Sons Ltd v Earl of Tankerville: Facts: the plaintiffs enetered into a contract with the defendant for the purchase of certain timber growing on his property. By the contract they were to have the right to enter the property, cut the timber and saw it up, to erect saw mills, and to remove the timber; the defendant was to give free exit for all the timber and free sites for saw mills. The plaintiffs erected a sawmill and comenced to cut timber, saw it up, and remove it. The defendant subsequently repudiated the contract and forcibly ousted the plaintiffs and their men from the estate. The plaintiffs brought an action against the defendant, asking for an injunction restraining him from preventing the due exection of the contract, and for damages. The defendant contended that the claim for an injunction was equivelant to a claim for specific performance, and that the court would not grant specific performance of such a contract, but would leave the plaintiffs to their remedy by way of damages. Held: although the court might be unable to compell the plaintiffs to cut the timber if they refused to do so, it had jurisdiction to give them relief by way of specific performance, and that the injunction ought to be granted. o ‘a contract for the sale of specific timber growing on the vendors property, on the terms that such timber is cut and carried away by the purchaser, certainly confers on the purchaser a licence to enter and cut the timber sold. At any rate as soon as the purchaser has severed the timber, the legal property in the severed trees vests in him.’ o The profit is the right to take the timber. The licence facillitates access to the timber. The licence gives the grantee the right to enter the grantors land to retreive the timber. - One must ensure that the formalities for the creation of a valid proprietary interest have been complied with; for example a profit may be created by a deed or profit may also be created by prescription.

31 - The formalities are attached to the profit or right not to the licence; a failure to follow the formalities for the profit would invalidate the profit and by extension the licence would be of no effect.

Contractual licence: - Occurs where some consideration is given for the permission granted - Includes paying to stay at a hotel or watching a film in a cinema. - Such licenses are generally expressly created and governed by the principles of contract. - Range from short term licences (parking a car) to long term licenses (occupying a flat). - Hardwicke v Johnson: the court treated the daughter in law as having a contractual licence, by virtue of her payment of £7 a week and the parties agreement which prevented the mother in law from expelling the daughter from the house as she was not in breach of their agreement given that resumed the payments which were accepted by the mother in law. - Whether formalities are required is dependant on the type of contract created. It appears that the general principle (excluding contracts where there is a disposition such as a sale of contract) that such contracts are not contracts for the siposition of an interest in land and therefore do not need to be section 2 LPA 1989 compliant.

Key issues: Revocation, Assignment and Third Party Rights:

Can the licence be revoked or withdrawn? - Revocation occurs where the permission that was formally granted has been wthdrawn. Ø Bare licence: - A bare licence can be revoked. - The licensor must give reasonable notice to the licensee. - Wood v Leadbitter: a mere licence is revocable - If the person does not leave after this reasonable time, the law will regard them as a trespasser. - Davis v Lisle: appelant appealed against a decision of the court in which he was found guilty of obstrcuting and assaulting the respondant, a police officer, in the execution of his duties. The respondent officer (in plain clothes) and another officer in uniform witnessed an offence being committed by a certain truck on the highway, that is, causing an obstruction. When the officers returned, they discovered that the lorry had been moved to the appellant’s garage. The officers enquired about the owners of the vehicle at which time the appellant asked them to leave the premises as they were not in possession of a warrant to search the premises. In the first instance, the appellant was found guilty of certain offences; however, on appeal, the court noted that even if the officers had a right to enter the garage and make reasonable enquiries, he had become a trespasser after the appellant asked him to leave. Thus, he could not be properly operating within the scope of his duties and the appellant’s conviction of assaulting or obstructing him in the execution of his duty could not stand. o ‘it makes no difference at all that he was a police officer. He had no right to be on the premises once he had been asked to leave. - What is reasonable notice depends on the circumstances of the case, that is the nature and purpose of the license. - A homeowner can revoke the license of a postman to walk up their drive immediately. If the postman proceeds to walk up the driveway at any time after notification he is a trespasser and can be forcibly removed. If while delivering the mail, he is told he is no longer permitted, he is permitted a reasonable time to get off the pathway, the home owner s not entitled to treat him as a trespasser without first giving him reasonable notice to leave. - Winter Garden Theatre Limited v Millenium Productions Limited: ‘It may be a purely gratuitous licence in return for which A. gets nothing at all, e.g., a licence to B. to walk across A.'s field. Such a gratuitous licence would plainly be revocable by notice given by A. to B. Even in that case, however, notice of revocation conveyed to B. when he was in the act of crossing A.'s field could not turn him into a trespasser until he was off the premises, but his future right of crossing would thereupon cease.’

32 - Those occupying premises must be given reasonable time to pack away their things and find alternate lodgings. - Given that it is gratuitous rather than contractual there can be no claim for damages or an application for the equitable remedies of injunction or specific performance when the license is revoked. - Minister of Health v Belotti: for reasons connected with war the minister of health granted certain evacuees connected to Gibraltar to be house din certain buildings owned by the crown. Due to reasons connected with discipline requests to leave were handed to the defendants and their dependents giving them one week to leave the accommodation. The attempts to remove the defendants failed. And the Minister of Health sought actions for trespass and an injunction. The court held that the minister was within his right to evict the defendants however the one week period was unreasonable as it was not sufficient time to find alternate accommodation. However given that more than one week expired between the notification and an application for an injunction, the defendants had reasonable time to vacate and an injunction should be given to restrain their trespass in the accommodation. - A bare license is revoked automatically on the death of the licensor. Ø Licence coupled with an interest: - By its nature such a licence must have been automatially granted over the land to exercise the right; by that very fact, this licence becomes part of the interest and cannot be revoked whilst the interest continues. - If a person sells timber standing on his land, he cannot laer prevent the purchaser from entering the land to collect it. - The licence facilitates the action which has been granted. - Patel v Patel: ‘a licence coupled with an interest is irrevocable as long as the term of the grant of the ancilliary interest continues. It cannot be withdrawn unless the right itself is withdrawn. - Where the right in land (and not the licence) may constitute a proprietary right in the land, the licence cannot be withdrawn at will. - James Jones & Sons Limited: ‘When once the purchaser has cut any part of the timber, the legal property in the timber so cut is certainly in the purchaser, and the licence so far as that timber is concerned is irrevocable even at law, and a Court of Equity in granting an injunction would only be restraining the violation of a legal right. An injunction restraining the revocation of the licence, when it is revocable at law, may in a sense be called relief by way of specific performance, but it is not specific performance in the sense of compelling the vendor to do anything. It merely prevents him from breaking his contract, and protects a right in equity which but for the absence of a seal would be a right at law, and since the Judicature Act it may well be doubted whether the absence of a seal in such a case can be relied on in any Court: Walsh v. Lonsdale.’ - Wood v Manley: certain hay on the plaintiffs land was sold to the defendant, the plaintiff agreed that the defendant could enter the land and take the goods, however the plaintiff subsequently revoked the licence to enter. The court held for the defendant (though it appeared the defendant had forcibly entered the premises and taken the goods. o ‘Here the conditions of sale, to which the plaintiff is a party, are that any one who buys shall be at liberty to enter and take. A person does buy: part of his understanding is that he is to be allowed to enter and take. The licence is therefore so far executed as to be irrevocable equally... I do not say that a mere purchase will give a licence: but here the licence is part of the very contract.’ Ø Contractual Licence: - At common law a contractual licence can be revoked at any time provieded there is reasonable notice but generally not before the expiration of the term without penalty. - Given that it was a contract the licensee could claim damages for the breach of contract. - The court will either imply a term into the contract which would prevent the revocation or the use of equitable rememdies such as injunction and specific performance. - R v Inhabitants of Horndon – on –the –hill: ‘ a licence is not a grantt, but may be recalled immediately; and so might this licence, the day after it was grnated… this was a mere personal licence.’

33 - Wood v Leadbitter: the plaintiff purchased tickets to see races at Doncaster. It was understood that the holder of the ticket would be permitted to enter and watch the races on all four days of the session. During one the plaintiff was asked to leave by the defendant police officer, who had been instructed by Lord Ellington, the steward of the races. The plaintiff refused and was informed by the defendant that, if he continued to refuse, he would use the necessary force to expel him. As a result of his refusal, the defendant took him by the arm and expelled him from the grounds. The plaintiff alleged that the judge had misdirected the jury by informing them that given that the ticket was sold under the sanction of Lord Ellington and it was on his request that the plaintiff was expelled, there was no recourse for the plaintiff. A new trial was ordered; however, the court finding that such a licence could be revoked with reasonable notice concluded that the direction to the jury was indeed correct. This was also affirmed by Lord MacDermott (at page 204): o ‘But it is, I think, safe, as well as desirable for the decision of this case, to say that one who remains on the land of another after his licence to use it has terminated will not be considered a trespasser before he has had a reasonable time in which to vacate the premises. That is well settled, though the assessment of what is reasonable may depend on a great variety of factors and cause considerable difficulty in particular instances. This period of grace can, of course, be the subject of agreement, but it exists for gratuitous [bare licences] as well as for contractual licensees and, on that account, must, I think, be generally ascribed to a rule of law rather than to an implied stipulation.’ Thus, the licence could be revoked as the most would be right in contract and not a right in land;; thus, only contractual remedies were at the party’s disposal. - Hurst v Picture Theatres Ltd: the principle from hurst is that the courts will intervene with the equitable remedy of injunction where the contractual licence was terminated prematurely. Mr Hurst bought a ticket for 17 March 1913 screening of Lake Garden on High St Ken, run by Picture Theatres Ltd, but the manager honestly believed he had not paid for his seat. He was forced to leave, and then he claimed trespass to the person. The theatre argued that even though the licence was revoked in breach of contract, that did not change that Mr Hurst became a trespasser and reasonable force could be used to remove him. Held Mr Hurst was entitled to damages. Buckley LJ gave two reasons for arriving at this decision: 1. first, a grant had been made to the claimant in the form of a right to enjoy and watch the film and following Wood, where a licence is coupled with a grant this cannot be revoked. This first approach was criticized by Latham CJ, who noted in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, that ‘the right to see a spectacle cannot, in the ordinary sense of legal language, be regarded as a proprietary interest. Fifty thousand people who pay to see a football match do not obtain fifty thousand interests in the football ground.’ 2. Buckley LJ’s second approach has received a more favourable reception by the courts: ‘If there be a licence with an agreement not to revoke the licence, that, if given for value, is an enforceable right. If the facts here are, as I think they are, that the licence was a licence to enter the building and see the spectacle from its commencement until its termination, then there was included in that contract a contract not to revoke the licence until the play had run to its termination. It was then a breach of contract to revoke the obligation not to revoke the licence, and for that the decision in Kerrison v. Smith [1897] 2 QB 445 is an authority.’ - To determine whether a contract has been terminated prematurely the court considers the terms of the contract - Tan Hin Leong v Lee Teck: ‘a contractual licence is irrevocable except as contemplated by the terms of the contract.’ 1. Look at the express terms of the contract – are there grounds for termination? 2. In the absence of express terms, the court will construe the contract with a view to determining whether there is an implied understanding that the contractual licence should not be revoked. An inference may be implied where the licence was granted for a certain time or where damages would not compensate a breach. - A contactual licence for a specific period cannot be revoked until the contractual period has expired (Hounslow London Borough Council)

34 - Where the licence is for an unspecified period of time, a term will be implied that the licence can be revoked on reasonable notice. - Winter Garden Theatre Ltd v Millenium Productions: should the licence be for an unspecified period of time, a term will be implied that the licence can be revoked on reasonable notice. This case assists in determining how much time a party has to leave. Facts: At the Winter Garden Theatre (now the New London Theatre on Drury Lane) the company Winter Garden Theatre (London) Ltd promised Millennium Productions Ltd that it could use the theatre for six months, with an option to renew for another six months, and after that it could continue for a flat weekly price of £300. Millennium would have to give a month’s notice if it wished to terminate, but Winter Garden’s obligations were not stated. The licence continued for over a year, to September 1945. Then Millennium made a contract for performance of Young Mrs Barrington, from 5 September till January 1946, but on 13 September Winter Garden decided to revoke the licence, giving a month’s notice, and demanding it leave on 13 October. Millennium argued that there was a breach of contract and that Winter Garden could only revoke if Millennium was in breach of contract, or that there had to be a reasonable notice period. o Per Viscount Simon (at page 189):‘There is yet a third variant of a licence for value which constantly occurs, as in the sale of a ticket to enter premises and witness a particular event, such as a ticket for a seat at a particular performance at a theatre or for entering private ground to witness a day's sport. In this last class of case, the implication of the arrangement, however it may be classified in law, plainly is that the ticket entitles the purchaser to enter and, if he behaves himself, to remain on the premises until the end of the event which he has paid his money to witness. Such, for example, was the situation which gave rise to the decision of the Court of Appeal in Hurst v. Picture Theatres, Ld. I regard this case as rightly decided, and repudiate the view that a licensor who is paid for granting his licensee to enter premises in order to view a particular event, can nevertheless, although the licensee is behaving properly, terminate the licence before the event is over, turn the licensee out, and leave him to an action for the return of the price of his ticket. The licence in such a case is granted under contractual conditions, one of which is that a well-behaved licensee shall not be treated as a trespasser until the event which he has paid to see is over, and until he has reasonable time thereafter to depart, and in Hurst v. Picture Theatres, Ld. where these rights were disregarded and the plaintiff was forced to leave prematurely substantial damages for assault and false imprisonment rightly resulted.’ - Thompson v Park: Facts: By an agreement between two headmasters, Thompson and Park, each of whom owned a school, the schools were amalgamated and Thompson licensed Park to enter, with some twenty- five boys, on his (Thompson's) school premises. Differences arose and Thompson informed Park that, after the end of the Christmas term, 1943, he would not allow Park to return with his boys and requested him to remove his furniture from the premises. When Park failed to remove the furniture, Thompson himself. In January, Park forcibly re-entered the premises. It was held that even on the assumption that Thompson had been guilty of breach of contract, Park was only a licensee, and that, as Thompson had revoked the licence, Park was a trespasser and had no right to re-enter the premises or remain on them, his remedy, if any, being for damages for breach of contract, and an interim injunction must be granted to restrain Park from further trespass and ordering him to remove his furniture and pupils. o Per Goddard LJ: ‘If the defendant thought that he had a grievance which could be lawfully asserted the courts were open to him. I am not saying what the result of any application by him would have been, for though this is not the sort of agreement which any court could specifically enforce—for the court cannot specifically enforce an agreement for two people to live peaceably under the same roof—yet, of course, if the contract is broken, the defendant has got a common law remedy in damages, which, if he is right, might be heavy. The defendant, however, did not seek the intervention of the 'court, but took the law into his own hands ... ‘ (Page 409) o ‘The strength of the argument which was put forward on the defendant's behalf was that, assuming that there had been a breach of contract on the part of the plaintiff, the defendant had a right to be where he was. That is an entire misconception of the legal position, which was that the defendant was a licensee on the premises. That licence has been withdrawn. Whether it has been

35 rightly withdrawn or wrongly withdrawn matters nothing for this purpose. The licensee, once his licence is withdrawn, has no right to re-enter on the land. If he does, he is a common trespasser.’

Whether the licensee can assign the benefit to another person: - a benefit is assigned where the rights vesting in one party are transferred to another party. Ø Bare lincence: - This licence cannot be assigned to a third party. Ø Licence coupled with an interest: - The interdependancy between the proprietary interest an the licence means that such a licence may be assigned to another person. This will only operate as long as the proprietary interest is active, given that it is the proprietary interest which is facilitated by the licence.

Ø Contractual licence: - Contractual licences are constrained by the terms of the contract, if the contract so permits, the benefit can be assigned, the burden will not pass - Clore v Theatrical Properties Limited: contrctual licence cannot be a proprietary right and therefore cannot bind a third party, even if they have notice. - Outside of cases which may be treated as inherently personal (service was to be rendered by a particular person to another specific person), all other benefits may be assigned under s136 of the LPA 1925 or otherwise in equity.

Whether a third party purchaser is bound by the licence: - This explores hwere a third party (not the licensee) purchases the property, whether the licence can enforce the permission they were given by the licensor against the new purchaser. Ø Bare licensor: - Given that the bare licence is a personal right (compared to a proprietary right), it is only binding on the licensor and the licensee. It therefore does not bind third parties o Presumption: where the licensee’s right can be treated as a property right, it will bind all third party purchasers. o Issue: can it be treated as a property right? First consider the numerous clause principle which has been confirmed by sections 1 and 4 of the LPA 1925: these sections indicate the closed class of legal and equitable property rights in land. Second, search this list to see whether or not it is included – no it is not. - National Provincial Bank Ltd v Ainsworth: Further confirmation that such a right is not included: ‘ before a right or interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permenance or stability.’ - Bare licences do not have a degree of permenance or stability. - Though it does not bind third party purchasers it should be noted that the licensee may have rights against another type of third party, a trespasser. If the licensee is permitted to for example stay in a home over the weekend, strangers are under a duty not to interfere with the licesees rights relative to the property. Though the licensee does not have a proprietary right, it appears that on behalf o fthe licesor, the licensee can expel any trespasser from the land. - National Provincial Bank: ‘I cannot seriously doubt that in this case in truth and in fact the wife at all material times was and is in exclusive occupation of the home. Until her husband returns she has dominion over the house and she could clearly bring proceedings against trespassers. Ø Licence coupled with an interest: - Where such a licence is granted, it binds subsequent purchasers of the land over which the right is being exercised once they take the property subject to that proprietary interest, however this is dependant on whether the requirements of registration have been met.

36 - It is the profit and not the licence that is proprietary in nature and given that the licence last as long as the profit endures it would appear to be proprietary as well and thus binding third parties. - Dixon says that the better argument is that the licence in and of itself does not hold these proprietary charectoristics and thus does not have any proprietary status on its own. Ø Contractual licence: - To determine whether a contractual licence may bind a third party one must consider wether it is a personal or a proprietary right - The jurispurdential treatment of this issue is demonstrated in 3 cases: 1. King v David Allen and sons: the traditional approach. The contract took effect only between the parties to the cotract and could not bind a third party. 2. Clore v Theatrical Properties and westby company: where a contract is personal it can only be enforced by persons who are privy to the contract. Further, given that the benefit can be assigned but the burden would not pass, the burden of the licence could not be passed to a third party purchaser. 3. Errington v Errington: a shift from the traditional approach, denning suggested that a contractual licence was a proprietary interest and could therefore bind a third party. In order to empower the land owner to expel the ‘tenant’ without notice, the landlord often granted occupation licences. Even if the equitable remedies of injunction or specific performance were granted, they were of little use to the ‘tenant’ who, by this time, would have already been expelled. Thus, the best remedy was to apply for the injunction during the currency of the agreement to prevent eviction. - Dennings approach in errington was rejected on the basis that it was contrary to king which held that contractual licences were a mere personal right which could not bind third parties. - Binions v Evans: despite the criticism lord denning confirmed the approach in Errington and argued in the minority that equity would intervene to assist a licensee where the purchaser had expressly taken the land subject to the licence. A constructive trust would ensure that the licence took full effect - Ashburn Anstalt v Arnold and company: the court reaffirmed the approach in King regarding Dennings decision as per incuriam and thus reaffirmed that contractual licenses were not proprietary interests. And would not bind anyone who was not a party to the contract. Street v Monford was cited: ‘a licence in connection with land, whilst entitling the licensee to use the land for the purposes authorized by the licence does not create an estate in the land - The approach in Anstalt was affirmed in Lloyd v Dugdale where the limitations of the constructive trust were discussed.

37

Proprietary Estoppel

Difficulties in defining estoppel: - R v East Sussex: ‘the moral values which underlie the private law concept of estoppel – the moral idea that one should not be allowed to go back on representations made or deon that others have relied upon. - Baird Textiles v marks and Spencer: equitable principles underly all estoppels but the scope of all estoppells are not the same. - In land estoppel is a way of avoiding formal requirements. - Estoppel is a shield not a sword.

Proprietary estoppel: - Proprietary etoppel allows some right or privledge over land to be conferred without any deed/written contract. - A way in which informal rights can be protected. It is a way of avoiding formal requirements. - Land law generally requires an extreme degree of formality. This is essential and importnant/ however the diffciulties caused by such a rigorous approach are mitigates by the doctrine of proprietary estoppel. - Proprietray estoppel is a shorthand name given to a body of principles developed by the courts (equitable and legal) whereby an owner of land will be held to have conferred some sort of right or privledge to another by means of certain conduct (usually some sort of assurances) which are then relied upon, without the presence of any appropriate formality such as a deed or registration. - Can operate as a shield and a sword. o Can act as a defence to an action by a landowner Lester v Hardy (if landowner claims trespass you can claim estoppel) o Can generate a new property interest – can be used as a swrod if the occupier has relied on some assurance to their detriment, without any formal deed. - Crab v Arun: the claimant was assured that his local council would build a right of way to his land, such that the land could be partitioned off and sold seperately without leaving one part of the land landlocked. To confimr their intentions the council built a fence with a gap for the assured right of way. The claimant relied on this assurnce to sell part of his land, leaving his own land locked. The council then filled in th gap and demanded £3000 for a right of way to be built. It was held that the council could be estopped for refusing to build the right of way. The claimant had detrimentally relied on the assurance of the council. (use as a sword) - Jennings v Rice: the claimant asserted a proprietray estoppel against the respondents. Hae had worked for the deceased for many years for little payment. He began to do more and more for her and although she did not pay him she said she woul ‘see him alright’. She died intestate. It was accepted that an estoppel arose but there was dispute as to the amount of the award. The claimant asserted that if a proprieatry estoppel was accepted the award should be of the property at issue. The defendants asserted it should be calculated according to the detriment suffered. Held: it was for the court to decide what was the equitable basis for satisfying the estoppel. There must be proportionality between the expectation and the detriment.

Conditions for the operation of proprietary etoppel:

38 - Taylor Fashions v Liverpool Victoria Trustees: must prove assurance, reliance and detriment in circumstances which would be unconscionable to deny a remedy to the claimant. - Gillet v Holt and Jennings v Rice say that assurance, reliance and detriment are important but the case must be looked at all together. - Thorner v Major: the holistic approach is the proper approach. Ø Assurance: - Needs to be some assurance as to the present or future right in the land - Does not necesarrily need to be a specified right, just needs to be clear enough and this depends on the context (Thorner family situation). In commercial setting specifics might be necesarry (Cobbe) - In some family situations the assurance was insufficient (Shirt v Shirt) context is verything! - Assurance can be written or oral or by instrument that is not contractually binding (Flowermix v Site Developments) - Assurance can be espress (Ottey v Grundy) or implied (ramsden v Dyson) - Estoppel can arise where there was no intention to create lega obligations (JT Devlopements v Quinn) - Estoppel can succeed provided that the claimant reasonably believes that an assurance has been made, even if the landowner did not intend to make an assurance by words or deed. Ø The reliance: - C must rely on the asurance - It must be possile to show that he was induced to act differently because the assurance was given - Landowner didn’t need to intend for C to rely on the assurance - Court may infer reliance where it is hard to prove and clear assurance has been given and detriment suffered (Gresley v Cooke) - If the detriment would have been sufference anyway regardless of the defendants actions there is no reliance (Orgee v Orgee) Ø The detriment: - Can take any form as long as it isn’t trivial. - Kinane v Alimany Mackie Coneth: spent money on land - Campbell v Griffen: improved land or devoted time to it or to the landowner - Suggit v Suggit: positioned life around faith that land might one day be his Ø Unconscionability: - Gillett: it is normally the defendants knowledge of the claimants detriment and his willingness to still detract assurance that creates unconscionability - It is unconscionability which allows the formalities to be lapsed – assurance reliance and detriment are not nough on their own. - Taylor v Dickens: a person is free to change their will and doing so is unlikley to create unconscionability that allows for estoppel to be used.

Estoppel and cotradictory law: - Law of Property (Miscellaneous Provisions) Act 1989 s2(1) - Cobbe v Yeoman’s Row Management Ltd: negotiations occurred between Cobbe and Yeomans row regarding development of a piece of and owned by the latter, Cobbe incurred expenses in undertaking works and obtaining planning permission under the impression that the land would be transferred to him for a joint development project. No written agreement was reached and yeomans row pulled out of the deal. A claim in proprietary estoppel was rejected as for a successful estoppel claim there must be more than a general sense of unconscionability. The claimant must show a belief that they have a certain proprietary right in th eland or an expectation that they will acquire one. Estoppel cannot make valid what a statute deemed to be void. o Emphasised that a proprietary estoppel would only exist where it was clear that the claimant believed they had a proprietary interest in anothers property or an expectation that they would acquire one. Here the claimant only had expectations of further negotiations to enter into a certain contract rather than a certain interest in the land itself.

39 o ‘estoppel is not a wild card to be used whenever the court dissaproves. The doctrine must be applied in a disciplined way. Certainty is important in property transactions.’

Result of a successful plea of proprietary estoppel: - remedy will vary from case to case - if used as a defence the claimant will be left to enjoy the right - when used as a sword the court can award whatever it deems appropriate but not more than what the claimant was assured. - The minimum is to create justice between the parties.

40

Easements

Incorporal Hereditaments

- technical term for an easement - incorporla means non-physical – rights that do not have a physical form, they exist solely in the abstract. - Hereditaments – they can be passed on, they are inheritable. Easements are attached to the land itself and pass on with transfer of land.

What are easements:

- An easement is a right which one or more persons enjoy over the land of another. - It is a proprietary right – capable of binding successors in title and third parties. - There are 2 people involved in an easemen who both have an interest in the land and there are always 2 pieces of land involved. - An easement confers a benefit on the dominant tenement – the dominant tenement is the land that benefits from something that the servient tenement gives up - The benefit and burden is with the land itself and so it follows the land not the people living on it – it is proprietary. - There can be positive and negative easements: o Right to light is negative – you have an easement against your neighbour which restrains them from building a high wall outside your window o Right to park on your neighbours drive is a positive easement. o Phipps v Pear: ‘positive easements give the owner of land a right to do something on their neighbours land, negative easements give the land owner a right to stop their neighbour doing something. - Easements tend to survive over many years. - It is up to the court whether the status of your right is sufficiently importnant to be called an easement – it is a significant decision as easements will bind future buyers – court is reluctanct to make such a drastic decision if soemthing less formal or burdening will suffice. - Too many easements = servient tenement too heavily burdened. - Too few easements = dominant tenement might loose value.

Charectoristics of an easement:

- Seminal case: Ellensborough Park - To establish that an easement exists 4 key elements must be satisfied accoridng to Re Ellenborough Park: o Facts: houses were sold with the right to full enjoyment of the park. When the park was requisitioned during WW2 the issue of whether the home owners could claim for compensation arose. The court held that the parl was an easement as it had satisfied the legal charectoristics of an easement – thus they were entitles to compensation. 1. There must be a dominant and servient tenement 2. The easement must accomadate the dominent tenement 3. The dominant and servient tenements must be owned or occupied by different persons 4. The easement must be capable of forming the subject matter of a grant

41 - The case establishes whether something is capable of being an easement not whether it is or isn’t – formalities need satisfying for this. - There is a lot of flewxibility in the conditions.

1. There must be a dominant and servient tenement: - Must be a land that is benefitted and a land that is burdened - A tenement simply refers to a plot of land in which the owner has a legal estate - Both must be identifiable at the time the easement is created (London and Blenheim Estates v Ladbroke retail parks) - Must be the land that benefits not a person - Right is ‘apurtenant’ to the land, it becomes annexed to it. - Which ever property is burdened with ensuring the right is the servient tenement - Which ever property receives the benefit of the easement is the dominant tenement

2. The easement must accommodate the dominant tenement: - Requirement that benefit must be conferred on the land – to ‘accommodate and serve’. - Test for whether it is a personal or proprietary right – if the land was sold could a new occupier of the land still enjoy that right. - Is the easement ‘reasonably necesarry for the benefit of the enjoyment of land’? explains why right of access usually suffices. - Does the easement benefit the user of the land, the value of the land or the mode of occupation of the land. - If you didn’t create the easement at the time of buying/building the property, courts are reluctanct to give it to you – it must be truly necesarry – not just for convenience or aesthetics. - A purley recreational purpose is unlikley to suffice. - Propinquity: this requirement must be met – the dominant and servient tenements should be close enough to establish a connection between them – Bailey v Stephens ‘there can be no right of way over land in Kent appurtenant to an estate in Northumberland’ - Three other considerations that may assist in determining whether this element is met: o Buisness use: where an easement is used for buisness purposes it lends to a conclusion that it is a personal right (Hill v Tupper: right to put pleasure boas in a canal, could not be an easement – an easement must accomadate dominant land) o Purely recreational right? The current posiiton is that there is scope in the law for the recognition of an easement which is purely for recreational purposes (internaitonal Tea Stores Company v Hobbs: recreational easement should only be permitted where there is a direct link between the land and the right cliamed. o Increased or extended use: any significant increase in use does not automatically extinguish the easement (British Railway Board v Glass: held that as long as the nature of the right was not vaired, increased use could not be challenged) excessive extension may not be allowed (Greatorex v Newman)

3. The dominant and servient tenements must be owned and occupied by different persons - The owner/occupier of the dominent tenement must not be the same as where the servient tenement where ownership/occupation are merged, the easement is extinguished.

4. The easement must be capable of forming the subject matter of the grant: - The easement must have the level of clarity and certainty that it is capable of being created by deed. - Easement cannot exceed existing property right (Wall v Collins) Ø There must be a capable grantee and grantor: - A person of sound mind and full age.

42 - There must be somoen legally capable of creating the easement and somone capable of receiving the right in whose favour the easement can be granted. Ø Sufficiently deifned: - Must not be vague and uncertain. - Both parties should be aware of the scope of the rights - Webb v Bird: a right to flowing air is too indefinite Ø The right must not substantially deprive the servient owner of the servient tenement: - If what the dominant owner can do on the servient land actually amounts to an ownership right then it cannot be an easement - Copeland v Greenhalf: an easement must not exclude the grantor from use of his land nor must he be deprived of possession or control. Ø Storage: - Whether the right to storage is permissible has always been linked to the issue of whether it effectively deprived the land owen from using his own land. - Copeland v Greenhalf: defendant used a strip of the claimants land which was the entrance to his orchard to store customers vehicles – defendant always left space for claimant to access his orchard – constituted almost permentant and exclusive use – no easement as it was essentially a claim for joint use of the land. - Grisby v Melville: right to unlimited storage in a cellar beneath a neighbouring property – could not be an easement – such an act amounts to a claim for beneficial ownership. Ø Parking: - Newman: the right to park a car in a particular reserved space would amount to a claim of possession of the whole servient space and so cannot be an easement. - Hair v Gillman: right to park a single car on a forecourt where four cars could be parked – easement as it did not interfere with owners right to park car on forecourt. - London and Blenheim estates Ltd v Ladbroke Retail parks: the question is whether the easement would leave the servient owner a reasonable use of his own land

What types of rights are capable of being easements?

- Richards v Rose: the right to the support of a connesting wall - Borman v Griffith: a right of way (right to use a path for the purposes of access - Miller v Emcer Products: the right to use a toilet - Wright v Macadam: the right to storage - Simmons v Midford: a right to lay and maintain sewers, drains and pipes. - Colls v Home and Colonial Stores: a right to sufficient light - An easement can also relate to a negative right which curtails the owners use of their land.

Can the category of permitted easements be extended?

- Dyce v Lady James Hay: it is possible for easements to be extended - However land must not become so burdened that its marketability is affected. - Hunter v Canary Wharf: when the canary wharf tower was built interference with the television reception was claimed (an easement to the right of television signal). The court refused to accept that such a right could exist. Recognising such a right would be a risk to landowners and open floodgates. - Miller v Emcer: extanded right to include the use of toilets on neighbouring premises on the basis that such a right had satisfied the elements required to establish an easement. Significant as it does not relate simply to a passing over or through, but a direct use. - It is not possible to gain an easement that unduly restricts your neighbours use of their land. This can only be established by covenant.

How is an easement created and maintained?

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- Easments are created by fulfillement of the 4 stages in Ellensborough. - Easements are maintained by the person who benefits from the right – they can go onto the land at a reasoable time and in a reasonable manner to maintain or repair the right.

How does the court interpret an easement?

- The general approach of the court is to interpret the clause fairly and not to insert the intention the the parties may have intended - Brooks v Young: CLAUSE ‘a right of way at all times… for all proper purposes connected with the reasonable enjoyment of the property’. INTERPRETATION the dominant owner had unlimited proper access. The words must be given a natural meaning and any restriction should have been clearly stated in the grant.

Legal and Equitable easements: Formalities

- The process by which the easement comes into existance determines where it is legal or equitable.

Legal easements: - Only capable of being legal if attached to a dominant tenement that is held under a normal freehold or leasehold. - Legal if created by an act of parliament, deed (unregistered land), registered disposition (registered land) or the process of prescription. All other easements will be equitable. - Most legal easements are created by deed or registered disposition – they are expressly included or implied by one of these formal documents. - S 25 and 27 LRA 2002: an easement expressly granted out of registered land must be registered against the servient title in order to take effect as a legal interest and become transferreable – if not it will be equitable.

Equitable easements: - Easements held for a period less than a fee simple absolute in possession or a term of years must be equitable. - Often equitable easements derive from legal interests not following correct procedure - For the easement to be equitable rather than non-existant it must either: o Be found in a written instrument – S2 Law of Property (Miscellaneous Provisions) Act 1989: a contract for the creation of an interest in land must be inwriting, incorporating all of the terms and be signed by both parties. o Be created by proprietary estoppel – Ives v High an oral promise relied upon to the promisees detriment generated an equitable easement against the promisor because it would have been unconscionable to deny it.

Creation of easement:

- A grant is something which is made by the servient tenement in favour of the dominant tenement over his own land. - A reservation arises where on transferring part of his land, the servient tenement and owner of the land reserves part of the land for a right for him to use after the land is sold.

Formalities: - S1(2) LPA 1925: defines the interests capable of being legal.

44 - S1(2)(a) LPA 1925: applies to the creation of easements in registered and unregistered land. Any easement granted for a period of time equivelant to a fee simple absolute in possession or a term of years absolute is capable of being a legal easement. (an easement granted for the length of your life would be equitable rather than legal as you are unable to predict the length of your life.) - If an easement is for a definite period of time as required by s1(2)(a) of the LPA 1925 then you must comply with s52(1) LPA 1925 which states that in order to create a legal interest in land, a deed must be created. Ø Creation of a deed: - S1 Law of property (Miscellaneous Provisions) 1989: o Must be in writing o Must state clearly on its face that it is intended to be a deed o Signed by the person making the deed in the presence of a witness o Delievered as a deed Ø No deed: - If there is no deed, it may be required that a valid written contract be created. - Requirements found s2 Law of porperty o Must be in writing o Must be signed on behalf of both parties to the contract o Must contain all the express terms of the agreement. - This creates an equitable right

Express grant: - An express grant is when the servient tenement owner gives the easement to the dominant - It is an agreement made knowingly and deliberately between 2 people - Two ways this happens: o 2 neighbours – one gives an easement to the other (CP Holdings v Dugdale) o owner sells bit fo his land and to held the sale, gives the new owner an easement over property (Hillman v Rogers) - if done by deed or disposition (legal) - if done by contract (equitable)

Express reservation: - an express reservation works the other way around – reserved or retained by the owner of the dominant tenement. Arises where part of th eland is sold and the easement is reserved - (A sells house to B as long as A can continue to access the swimming pool.) - operates for the benefit of the land being kept. - Must be clearly and unequivically expressed

Implied grant: - where there is no express easement – court can sometimes imply - Implied by necessity: o the test is one of absolute necessity (Titchmarsh v Royston Water Co) o if there is an alternative route an easement of necessity is prevented (Menzies v Breadalbane) o usually relates to circumstances where the land is genuinely landlocked (Nickerson v Barraclough) o Wong v Beaumont Property Trust: easement of vatilation – property was bought to be a resturant could not operate as one with ventilation shaft. o Given that the ocurts must imply this into the deed, it is a legal easement – if there is no deed there is no easement. - Implied grant of mutual intention:

45 o Court will give effect to the intentions of the parties hwere the land was sold o Davies v Bramwell: the court found that it was the common intention of the parties that the land would be used as a garage which included the use of a ramp. To access the ramp a right of way had to be created over the plot retained by the vendor. The courts gave affect to this intention and granted a right of way. o Implied into deed – legal easement. - Implied grant under the rule in Wheeldon v Burrows: o Creates a ‘quasi-easement’ o Applies where land is sub-divided into 2 or more plots and permits the purchaser to claim the easements which the seller enjoyed prior to the sale. o Purchase owns the dominant land and the seller would retain the land with the burden o In order to establish a claim under Wheeldon 3 requirements must be met, it must be 1) Continuous and apparent 2) Necesarry for the reasonable enjoyment of the property – discoverable on inspection – worn path 3) In use by the owner at the time of the grant- rule does not apply where it is expressly excluded by an express grant or a conveyance. o Can be valid as a legal or equitable easement – if created by a lease asa written contract it is equitable. If it is a formal lease to take effect for less than 3 years it can be legal. - Implied grant under s62 of the LPA 1925: o a right privlege or advantage will be converted into an easement under this section if the following conditions are met: § s62 must not be expressly excluded § separate occupation of the dominant and servient tenements § the owner of the servient tenement uses a deed to sell or transfer the dominant tenement § the owner of the servient tenement uses a deed to grant or renew a lease § the owner of the serient tenement uses a written agreement to grant or renew a lease.

Prescription:

- easements can be acquired on the basis of prescription under the comon law. - these are acquired on the basis of use over a long period of time, even without the express permission/grant of the landowner. - Use will maure into an easement. - Only generates legal easements – will attach to the fee simple. - Bray note some essential rules of prescription: 1. The right must not be claimed as a result of physical force, it must not be openly exercised. o It must not be concealed and must be used on a continuous basis even if that use is infrequent. o With permission – silence or mere assent would not suffice – Mills v Silver (permission must be expressly granted 2. The claim cannot succeed if it would be lawful under naother rule – there could be no easement for something that is already a public right of way. 3. An illegal right may not be claimed as an easement 4. A tenant may not bring a claim as they are on the property with permission. Claims are permitted by one fee simple owner against another fee simple owner. - (use must be without secrecy, without force, wihtout permission) - the legal owner must acquiesce the right as if they gave permission the easement would not be required. - Knowledge doesn’t amount to implied consent (Mils v Silver) - Dalton v Angus: suggests there is no permission as long as there is:

46 1. Use of the servients land 2. Absence of a right to carry on the use 3. Servient owner could have knowledge of the use 4. Servient owner has the ability to stop the use 5. Servient owner abstains from stoppin use for the set period.

Criterion: Ø Common law: - Use will mature if it has occurred since before ‘legal memory’ - Legal memory comences in 1189 - C need only prove use of 20 years but D can defeat claim by proving that use is not as long as legal memory. - Duke of Norfolk v Arbuthnot: a claim for the right to light for a church fialed as there was proof that the church was built in 1380 and thus it was after 1189. Ø The Doctrine of the Lost Modern Grant: - Claim under this section is based on a legal fiction that at sometime a right was granted by deed but that deed had now been lost Dalton v Angus &Co - On the facts the courts usually require continuous use for 20 years. - Sufficient use must be established: Hollins v Verney (court held sufficient use could not be satisfied by 2 uses in 20 years. Ø The prescription Act 1832: - Alleviates heavy legal burden in establishing a claim under common law. - Under the act a claimant must satisfy 1 of 2 periods of time in order to succeed: 1. The short period: 20 years continuous use immediately before the claim, can be defeated by owner if they can prove the right was based on the consent of the owner. 2. The long period: 40 years continuous use immediately before the claim. Claim cannot be defeated even if there is proof that the right was granted with consent of owner, unless consent was given in writing. - Can a claim be made on the basis of illegal activity? The old position was no, the current position is that an easement can be acquired in illegal circumstances because permission was not granted but it must be something for which permission could have been granted.

Registered vs Un registered land:

Unregistered Land: Ø Legal: - If it is a legal interest it will bind the world including third parties - Legal easements which will be binding are those: o Created expressly by deed o Implied through necessity o Implied through mutual intention o Operating under the rule in Wheeldon v Burrows when tehre is a deed o Under s 62 LPA 1925 o Acquired by prescription Ø Equitable: - If equitable must consider if it is capabe of entry as a legal chuarge under the Land Charges Act 1972. - If it is – determine in whose interest it is to enter as a land charge – this will be person who benefits - If land charge is correctly entered it will bind everyone who takes the land

Registered Land: Ø Dealings which must be completed by registration:

47 - Express grant or reservation of a legal easement - S 27 – must be completed by registration - Person who has legal benefir of the legal easement is entered as owner on the property register Ø Interests which override a registered disposition: - Bind everyone including the purchaser - Legal easements are overriding if the following conditions are met: o The person who bought the land that had the easement over it knew about the easemnt o The easement would have been obvious to a person who bought the land on a reasonably careful inspection of the land o The easment had been used in the last year before the land was sold. Ø Interests entered as a notice or protected by a restriction - Interests entered as a notice on the charges register or protected by a restriction on the Proprietorship register of the land.

Equitable easements: - Will never be overriding.

Remedies for unlawful interference:

Abatement: - Owmer removes obstruction to use of the easment

Nuisance: - A claim in tort

Injunction: - Granted on its own - Granted in combination with aggravated damages

Damages under s50 of the Supreme Court Act 1981: - Damages may be awarded where: the injury to the claimants rigt is small - The damages can be estimated in money - The damages would adequately compensate the claimant - It would be oppressive to grant an injunction.

Extinguishment of easements:

- agreement: express agreement of the parties - automatic termination/unity of ownership: where there is common ownership of the dominant and servient plots Roe v Siddon (a man cannot have an easement over his own land) - release: releasing your easmenet by giving permission for action that offends this right. - Abandonment: occurs as a resul of long periods of non-use / demolition of a building - Change of circumstances: Huckvale v Aegean Hotels: an easment can be extinguished by a change of circumstance because it no longer accomadates the dominant tenement. - Excessive use

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Landlord and Tenant

Leases:

- A lease is also referred to as a term of years or as a demise - A lease is a term of years absolute possession. It can be for a fixed term – could last a thousand years. - The person who takes the lease is the tennant - The person who grants the lease is the landlord - The landlords estate is referred to as the freehold reversion - The lease between the landlord and tenant = head-lease - The lease between tennant and sub teneant = sub lease - A transfer by a tenant of the whole of his interest is termed an assignment - Fundamental features of a leasehold: 1. Allows 2 or more people ot enjoy a property. The freehold gets the rent, the leasehold gets enjoyment of the property 2. Both have proprietary interests in the property. The freehold owns the reversion expectant on the lease while the leasehold/tenant owns the lease. Both of these can be sold or leased to others while the lease is alive. 3. All leases come with covenants: express, implied and custom. Custom covenants are in all leases unless expressly excluded

Nature of Leashold ownership:

- LPA 1925 s1(1): ‘the only etsates in land which are capable of subsisting or of being conveyed or created at law are: a) An estate in fee simple absolute possession b) A term of years absolute’ - Street v Mountford: Lord Templeman identifies the essential qualities of a lease as an arrangment that gives a person ‘exclusive possession of land, for a term, at a rent.’

Conditions for a lease:

Exclusive possession: - Marchant v Charters: the answer as to whether there is exclusive possession depends on a variety of factors – the answer depends on the nature and quality of the occupancy - Street v Mountford: exclusive possession is the distinguishing factor of a lease. Lord Templeman accepted that tehre could be scenarios where there is excluive possesion but no lease: o Where a lender goes into possession of a property where the borrower could not repay the loan. o Where exclusive possession was given out of charity or friendship without legal intentions. - Exclusive possession is the key difference between leases and licences – led to many landlords trying to grant licences rather than leases so that the tenant doesn’t have exclusive possession. Ø Shared accomadation:

49 - It is accepted that a licence opposed to a lease may occur where a property is shared. It could be a lease if all the parties signed the same ‘joint tennancy’ agreement for the whole house and the 4 unties are present, but otherwise it is a licence. - AG Securities v Vaughan: flat shared by 4 people, held to be a licence not a lease because the people had signed independent agreements which merely conferred the right to share the flat, not exclusive possession. The agreements were signed at different times for different prices according to different conditions. The 4 unities were not met. o The HOL emphasised the importance of looking to the genuine nature of the agreements, rather than relying on what the agreements themselves purport to establish. If an agreement to grant a licence is seen as a sham, the courts will look to the reality of the arrangment to dtermine whether the occupiers enjoyed exclusive possession - Antoniades v Villiers: agreement purported the right for the landlord to share a room with 2 of the tenants – clearly a sham condition – held to be a lease. - Aslan v Murphy: the fact that a landlord has a duplicate set of keys does not negate exclusive possession. Landlord can enter property to make inspections – should give notice. - Bruton v London Quadrant Housing Trust: Mr Bruton occupied a flat in Brixton. The flat was owned by Lambeth Borough Council who had granted a licence to London & Quadrant Housing Trust which permitted the Trust to provide accommodation to homeless people. Mr Bruton claimed that his agreement with the Trust was in the nature of a tenancy rather than a licence and that the Trust was in breach of its implied obligations to repair under the Land Lord and Tenant Act 1985. The Trust argued that since they had no legal estate in the property, as they were only licensees themselves, they had nothing from which they could grant a tenancy. Held: Mr Bruton was a tenant. The agreement fulfilled all the criteria to create a tenancy since it conferred exclusive possession for a certain period in return for rent. It did not matter that the Trust held no legal estate in the property.

Term certain: - Leases can either be for a fixed term, or they can be periodic tenancies. Must be for a defined and certain period of time. - Maximum length of the lease must be identifiable at the start of the lease enevn if it may finish sooner. - Reference to another length of time is likely to make the term uncertain. - Lace v Chantler: the lease was granted for the duration of the war. Held this was invalid, not a certain term as they could not know how long the war would last. - Prudential Assurance v London residuary Body: emphsised importance of the rule. - Berrisford v Mexfield: highlighted some issues with the rule but it could not be abolished. Some clarifications were made: o LPA 1925 covnerts leases for life to ’90 year leases’ and so are certain enough to satisfy Prudential. Ø Periodic tenancies: - Indefinite continuation until terminated by either party giving the requisite notice. No certain term in agreement but on pays rent to a landlord at certain intervals e.g. quarterly – each quarter is its own certain term - Mexfield Housing Cooperative Ltd v Berrisford: laid down some requirements for creation of a periodic tennancy: a) Agreement for a term whose maximum duration can be identified can give rise to a valid tennancy b) An agreement which gives rise to a periodic arrangement determinable by either party can be valid c) An agreement could not give rise to a tennancy if it was for a term with uncertain duration at inception d) A fetter on a right to serve notice to determine a periodic tennancy was ineffective if the fetter is to endure for an uncertain period – a fetter for a specific period could be valid.

50 Ø Statutory provisions cocerning certain terms: - Lease for life = lease for 90 years (s149(6)LPA 1925) - Lease that is perpetually renewable = lease for 2000 years (sch 15, s145 LPA 1922) - Lease intended to start more than 21 years after the instrument which creates it is void (s149(3)LPA 1925)

Rent: - Street part of the definition of a tenancy - Not required for certain types of lease - No rent may impliedly suggest parties did not intend to make a lease.

Requirements for creation of different types of lease:

Formalities Ø Legal or equitable - Whether or not a lease is legally enforceable depends on whether it follows the formalities - Legal leases: o leases for 3 years or less that give the tenant immediate possession without payment of initial sum at the best rent will be legal whether created orally, contrctually, or by deed. o Leases for more than three years or leases that do not fit with the above must be created by deed to be legal. o If a lease granted by deed for more than 7 years is not registered it will be equitable. Title registration is not necesarry if the lease is for less than 7 years. o A lease of unregistered land by deed must also be registered otherwise it is equitable - Equitable leases: o Leases for more than 3 years created in the absence of a deed but with an enforceable contract. o The contract must be neforceable, in writing containing all of the terms, signed by both parties. o The remedy of specific performance must be available where there is consideration and damages are not sufficient. o Proprietary estoppel may result in an equitable lease. - Registration: - Uner 3 years – cannot be registered - Between 3 and 7 years – optional registration permitted - More than 7 years – registration required. - Walsh v Lonsdale: if the formalities ofr a legal lease are not met there can be an equitable lease but a formal written contract is still required Ø Capable grantor: -

Types of tennancy and governmental regulation of leases:

Tenancy at will: - Insecure – determinable by either side at any point (can be ended by either side at any point) - If a tenant at will starts paying rent on a regular basis, it is automatically converted to a periodic tennancy – ascertained according to the period by which rent is assessed.

Tennancy at sufferance: - Where tenant continues in possession following expiration or breach of the lease, without express agreement from the landlord

Assured tennancies:

51 - Under the Housing Act 1996 all private landlords are able to grant assured tennancies - The assured tennant has some degree of security of tenure, but there are no controls on the rent charged Ø Assured shorthold tennancies: - Has become the most common form of residential letting - The tenant has no scurity of tenure onced the fixed period expires, there are weak controls on the amount of rent - Under the Housing Act 1996, unless the landlord specifically grants an assured tennancy then an assured shorthold tennanc will arise. - Law is structured so you automatically get the least form of protection. - Families have to move regularly as after 6 months the landlord can increase the rent.

Public tenancies: Ø Protected tenancy: - Lease of a dwelling house within the scope of the rent acts. - If the lease terminates then normally the tenant can lawfully stay in possession as a statutory tenant Ø Statutory tenancy: - A statutory tennant technically has no estate or interest in the property they are occupying - He has a right given by the statute to continue to occup the property notwithstanding the termination of the lease Ø Secure tenancy: - Granted under the Housing Act 1980 - Public sector lettings such as council houses - Secure in the sense that tenant cannot e made to leave

Leasehold Covenants:

- A covenant is a contract with proprietary force - Promises contained witin the lease between the landlord and tenant are enforceable. - In some circumstances they will bind third parties ao that both the right to sue on the leasehold covenants and the obligation to perform can be passed on to succcessors. - Covenants involve a benefit and a burden.

Types of covenant: Ø Express: - Pay rent (T) - Insurance (T) - No major alteration (T) - No assignment or subletting (T) - Paying of certain bills (L) Ø Implied: - No damage (T) - Give up possesison at end (T) - Quiet enjoyment (L) - Repair (L) - Services (L)

Quiet enjoyment: - Considered one of the most important covenants in the lease - The landlord is not allowed into the property apart from in order to protect their interests

52 - Deane v Evangelou: tennants possessions were thrown out into the street – damages were awarded for severe breach of contract. - Southwark LBC v Mills: covenants are not to be read literally – tenant complained lanlord breached covenat by not preventing noise coming from another building – landlord had done nothing to make the situation worse – normal activity will not breach covenant. Repairs: - Where the costs of the repair work are close to the overally value of the property as it existed before it fell into disrepair the work required may fall outside the ambit of the covenant. (Brew Brothers) - An express covenant to repir sould not impose an obligation to make a new improvements to the property – adding additional features. - An express covenant for repair should not involve an obligation to correct design faults. However if the fault causes disrepair to the property which can only be fixed by fixing the design fault, the correction of the design fault may fall within the ambit of the covenant. - Smith v Marrable: common law obligation that a furnished dwelling must be fit for human habitation at the start of the lease – house was infested with bugs - Covenants within the lease can determine whetehr it is the responsibility of the landlord or tenant to see to repairs. - A periodic tenant is under no obligation to repair but must use the property in a responsible manner: - Warren v Keen: the tennant must do little jobs which a reaosnable tenant would do. - The standad of repair is determined according to the age of the property

Landlord and Tenant Act 1985:

- The obligations on landlords apply notwithstanding any agreement to the contrary – they cannot be excluded – public policy reasons to ensure minimum standards Ø Ss 8-10 - Applies to lettings at no more than £52 annum (£80 annum within London) - Does not apply to lettings for 3 or more years - S8 dwelling must be kept fit for human habitation – minimum standard is not necessarily a comfortable standard. Ø Ss 11-14 - Applies to all lettings of dwellings for no more than 7 years]applies to lettings for more than 7 years if the landlord has an option to terminater within th efirst 7 years - Places clear obligations on the landlord - It is possible for the parties to agree that these secitons do not apply – only if the cosnet of the county court is obtained in advance. Applications to the court for such consent are rare. It is not in the tenants interest. - Under these sections the landlord must: o Keep in repair the ‘structure’ and exteriror of the house (including drains, gutters, external pipes) o Leep in repair the installations of the home for the supply of water, gass and electricity o In the case of blocks of flats they must keep in repair common parts such as lifts and staricases - what amounts to the structure? o Re Irvines Estate v Moran: held that sturcture does not cover load bearing elements such as windows and internal plastering o Outside decorative elements may protect the property and are therefore the landlords obligation o Quick v Taff-Ely: lack of insulation around single glazed windows cuased condensation – did not cause physical damage to the structure only mould. o The principle in O’Brien v Robinson: landlord only liable to recover disrepair if he knows of the need for repair or had information of the possible need for repair. The tenant must alert the landlord as soon as possible. Landlord obligation to recover disrepair is only active when they know of the need.

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The Landlord and Tenant (Covenants) Act 1995: - Tried to help out tennants but landlord pressure groups campaigned so now it has a lot of advantage for them included. - General rules: o Applies to legal and equitable leases. o Tenant is released from burden of leasehold covenants when he signs the tennancy o Landlord is relaease from burdens of leasehold covenants on assignment but may serve notice to the tenant applying for such release.

Remedies for Breach:

- Courts have the power to gant equitable remedies when contract is breached. Ø Personal: - Arrears for rent: landlord can enforce the covenant to pay rent by bringing an action to recover arrears of rent either in the high court or the county court.. a maximum of 6 years of rent can be recovered in this way. - Other covenants - Damages Ø Proprietary: - Forfeiture - Injunction (specific performance)

Forfeiture: - The landlords most powerful remedy – terminates the lease. Available for breach of all covenants - Can result in the tenant loosing estate no matter how disporportionate the result is to the loss.. - Following breach of covenant the landlord can enter the property and brign the lease to an end – only if lease contains a forfeiture clause. - Type of breach: o Non payment of rent: landlord must obtain court order for forfeiture o court will grant relief against forfeiture if the breach is remedied. Releif can be granted up to 6 moths after the tennant has been made to leave. o Relief from forfeiture for non-repayment of rent 3 conditions: 1. Tenant must pay all the arrears of rent 2. Tenant must pay all the landlords costs 3. It must appear just and equitable to grant relief.

Forfeiture for breach other than for rent: - LPA 1925 s146 – notice served by landlord on tenant a) Specifying breach complained of b) If the breach is capable of remedy, requiring the lesse to remedy the breach c) Requiring the lesse to make compensation in money fore breach. - LPA 1925 s146(2) – tenant can apply for relief against forfeiture - The 4 stages od a notice made under s146: 1. L must serve a carefully drafted warnign notice on the current tenant 2. L must then wait a reasonable time before commencing forfeiture proceedings 3. If breach is not remedied in the reasonable time waiting period, L can issue a claim form demanding forfeiture 4. When L’s forfeiture case reaches court the tenant can beg the court to grant relief.

54 Remediable or irremediable breaches: - Need to take into account the length of the reasonable time which must elapse - Where the breach is remediable, L must wait at least 3 months for the remediation to occur - Where breach is irremediable a fortnight delay between service of notice and commencement of proceedings suffices - Court is more likely to grant relief where the breach is capable of remedy. - Positive covenants to keep in good repar are remediable - Negative covenants such as not using the property for immoral purposes are also remediable

Waiver of forfeiture: - Waiver will occur where: o L knows of the breach, and o With that knowledge he does some unequivocal act, known to T, which would indicate to a reasonable onlooker that he regards the lease as still subsisting.

Assignment and subletting of leasehold interests:

- Assignment – transfer of the whole of the persons interest in the land o LPA 1925 s54 (2) deed not required if lease is less than 3 years - LATA 1927 s19 - LATA 1988 s1(3) – refusal of consent - Commercial leases: lessors and lesses can agree circumstances when consent to assignment may be given or refused. If so the courts cannot inquire into the reasonableness of refusal of consent. - Prior to 1996 - LAT (covenants) Act 1995: o coveneants can now pass unless expressed otherwise o s5: tenant who assigns the whole of the lease is release from the covenants o s6: authorised guarentee agreement – assigning tenant lable until next authorised assignment o ss 6-8 protection for tenants against landlord assignments – needs consent, but landlord can apply to court for release. o S17: need for notices to be given by current tenant to origional tenant o S19: overriding lease for origional tenant who pays the sums due putting the between lessor and current tenant. o S25: anti avoidance provisions.

Termination of leasehold interests:

- Forfeiture: very powerful remedy for breach that terminates the lease - Expiration of fixed term - Notice to quit – can happen either: o By giving notice to terminate a periodic tenancy o By invoking a break clause in a fixed term lease (there must be a break clause in the lease allowing early termination § Marks and Spencers v BNP Paribas: lease was granted for a term expiring in 2018. Rent was paid quarterly. The contract contained a break clause, which the tenant exercised in 2012 – after it had paid the quarterly rent. Issue was whether there is an implied term that a tenant can reclaim pre-paid payments on the basis of a quarterly payment claim where the lease has been terminated validly by a break clause but before use of the pre paid quarterly fees. COA said no. - Surrender: o Landlord must agree to surrender to terminate lease

55 o May be inferred from practice o May be estopped from denying he has accepted surrender.

Human rights:

- Assured shorthold tenancy o Residential in essence, eriodic monthly lease after first 6 months – statue says L must give 2 months notice but not for atleast 6 months o Housing Act 1988 s21: ‘a court should make an order for possession if the tenancy has expired or terminated o ECHR article 8 § Mcdonald v Mcdonald: COA closed gap left by Manchester CC v Pinnock. The article 8 defence cannot be invoked against private landlords who do not qualify as public bodies under the HRA 1998. The appelant was issued a s21 notice under the Housing Act 1988 by her parents who were her landlords – if valid such a notice is grounds for possession. The defendant argued that the house was he home and she had article 8 rights. The court of appeal decided that: 1. There was insufficient case law from the EctHR to show that article 8 applied in private situations 2. Even if there was sufficient jurisprudence, there is a very high threshold before article 8 can be used; the property rights of the private landlord must be part of the assesment and have a substantial weight. 3. As a matter of precedent the COA had already decided the compatibility of s21 notices with the European Convention in Poplar Housing.

56 Land Cases 1

Ownership/Registration Docklands Lower airspace necessary for Developments ordinary use + enjoyment of land For chattel to become Elitestone Greater annexation → chattel more fixture need to consider: likely to be fixture (unless doesn’t 1. Degree of annexation require annexation). 2. Purpose of annexation D’Eyncourt v Gregory Chattel will become fixture if purpose is to improve property Overall design of building? Botham Court took into account more than Movability of object? degree and purpose for whether Lifespan? Damage caused chattel is fixture. when moved? Who attached it? S62 LPA 1925 Purchaser entitled to receive anything that’s a fixture (Freehold + leasehold S1 LPA 1925 Definition of rights which are estates, easements, legal capable of being legal mortages) (Exception – leases under 3 S52 LPA 1925 Proprietary right must have been years don’t need to be created/granted by deed. created by deed). S4 LRA 2002 Compulsory first registration S 27 LRA 2002 Subsequent transfers of registered estate/leases over 7 years must be registered to operate at law. Overriding Interests Schedule 1 LRA 2002 Unregistered interests which override first registration Schedule 3 LRA Unregistered interests which override subsequent transactions of already registered land. Hodgson v Marks For Sch 3(2) a purchaser should make enquiry of actual holder of interest rather than just registered owner. Chokar v Chokar Temporary absences don’t always prevent actual occupation → absence for giving birth in hospital is fine Stockholm Finance Absence for over a year and only Ltd v Garden using property when visiting from Holdings abroad – no actual occupation Linklending v Bustard If there’s intention to return then significant factor in proving AO. Land Cases 2

Person at mental institution had AO. Lloyds Bank v Rosset Nature and condition of land is relevant. AO can be established through an agent. Hypo-Mortgage Minor can’t be in AO on behalf of Services v Robinson parents. Abbey National BS v AO must be established at time of Cann transfer of land LRA Sch 3 S3 Conditions for impliedly created legal easements binding a purchaser S29(3) LRA 2002 An interest ceases to be overriding if registered Unregistered land S23 LPA 1969 Purchaser of unregistered land must establish good root of title – examination must go back at least 15 years since last dealing with property. Registration will bind. If not Equitable interests registrable as registered, won’t bind land charges purchaser regardless of knowledge of interest. Estate contract; restrictive Land Charges Act Equitable interests registrable as covenants; equitable 1972 s2 land charges easements; rights to occupy the family home. Diligent Finance v Land charge won’t bind when Alleyne registered under incorrect version of name. As long as consideration is valuable, court won’t enquire into adequacy of consideration provided. Adverse Possession JA Pye v Graham; AP occurs where whether through DISPOSSESSION or Rains v Buxton DISCONTINUANCE, the squatter goes into ORDINARY POSSESSION of the land for the REQUISITE PERIOD OF TIME WITHOUT THE CONSENT OF OWNER acquiring title to land. Limitation Act 1980 System for unregistered land where more than 12 years elapsed pre LRA 2002 Dockray It’s in public interest to promote the full use of neglected land. Desirable to use property to best advantage. Land Cases 3

Howard + Hill Argue that long use alone shouldn’t be sufficient to confer legal right. Hopkins Reality is given preference above formal legal preference Roger Smith AP provides certainty – no claim to ownership can survive 12 yrs. Case where squatter acquired title to land worth £10 million. Dispossession or discontinuance Rains v Buxton Dispossession occurs where AP Confirmed in comes in + drives out owner Buckinghamshire CC Discontinuance occurs where owner goes out of possession + is followed v Moran in by AP. Hounslow LBC v Not relevant how long original Michinton owner had discontinued using land, what matters is time during which AP has been in actual occupation of land. Actual Possession Powell v McFarlane For actual possession must have: 1. Factual possession 2. Intention to possess 1. Factual possession Powell v McFarlane Squatter must be dealing with property as an occupying owner would be expected to. Hounslow LBC v The acts are relevant, not the Michinton motives behind them. Powell Act must be so open that owner had opportunity to discover possession. Claimant in this case 14 yr Powell The younger the adverse possessor, old the more difficult it’ll be to establish they were dealing with it as occupying owner would. Seddon v Smith Enclosure is the strongest possible evidence of AP (erection/maintenance of fences, walls or other boundaries) Wallis’ Cayton Bay Repairing and painting fences, Holiday Camp cutting hedges and grass was factual possession Prudential Assurance Work to wall by increasing height – factual possession Basildon District Fencing which is weak + temporary won’t suffice Land Cases 4

Council v Charge Boosey v Davis Merely patching a fence is insufficient, particularly when not enclosing Chambers v London Whether wall operates to exclude Borough of Havering people including paper owner Powell Controlling access – chain and padlock for gate sufficient Lambeth LBC v Replacing door + lock deemed Blackburn unequivocal proof of exclusion of all others Powell Cultivation, cutting + rearing crops/garden/animals deemed evidence of mere temporary use rather than intention to possess St Leonards v Planting trees deemed to be Ashburner equivalent to building fence/wall → sufficient Convey v Regan Cutting of grass alone insufficient West Bank v Arthur Irregular cultivation won’t suffice Kynoch v Rowlands Grazing alone insufficient Powell Erection and enforcement of notices – Notice followed by enforcement = possession Type of land will be a relevant consideration: Red House Farms Marshland – using marsh to shoot things over, held to be only sensible use of land, high enough exclusive degree of control. Port of London Claim to a river bed on basis of boat Authority which rested there overnight – factual possession established. Depends on nature of land + how it’s commonly used Techbild v Undeveloped land – children playing Chamberlain on land and tethering ponies found to be trivial acts, didn’t constitute FP. Pye v Graham Grazing land – took crops, manured land, maintained hedges and held only key – sufficient control. Partial physical control: Powell Absolute physical control is normally impracticable. Everything dependent Land Cases 5

on particular circumstances. Breaks in factual possession: Solling v Broughton If paper owner makes sporadic visits to property to guard against squatters this affirms control of owner. Genergy AP doesn’t require a person to obtain 24/7 physical occupation Slight acts: Redhouse Where land’s abandoned, insignificant use of land may be sufficient to give FP Law Commission Where land has been abandoned slight acts by squatter may amount to taking possession Roberts v Swangrove Gradual slight improvements may count, doesn’t have to increase profitability/domestic/commercial use. Smith v Lawson Factual possession must be adverse to the owner Buckinghamshire CC Needn’t be inconsistent with future v Moran intended use of land by paper owner. Intention to possess Powell Squatter must display an intention to possess, which refers to an intention, in one’s own name and on one’s own behalf, to exclude the world at large, including paper owner. Pye v Graham Acts required to show sufficient degree of physical control my indicate existence of requisite intent. Powell Intention must be clear for all to see, can’t be ambiguous Hughes v Cork Intention to possess rather than dispossess Lambeth LBC v Appellant had no intention of Blackburn moving out until evicted, didn’t need to intent to possess it indefinitely. Possession is adverse where Possession must be adverse the possession is without the consent of the legal owner Land Cases 6

Powell No presumption of implied licence where squatter’s acts are not inconsistent with owner’s present/future enjoyment of land. Buckinghamshire CC Possession isn’t adverse if it’s v Moran enjoyed under lawful title. Thus, having right or license/lease – no AP. Treloar v Nute Removed all notions that adverse requires some inconvenience or annoyance to title owner. Requisite period of time Schedule 6 LRA 2002 Registered land – 10 years Same system for registered S15 Limitation Act Unregistered land – 12 years land where time period of 1980 AP has been completed before LRA 2002 came into effect. When time stops running in favour of AP: Mount Carmell Owner starts proceedings/actions to Investments recover land. In this case however mere instruction to solicitor asking for letter to evict squatter to be drafted insufficient Randall Owner retakes possession of land Zarb v Parry Court held owner must retake possession in ordinary sense, can’t be temporary/symbolic acts Agency v Short Where squatter took possession then abandoned it, this resets the clock Sch 6 LRA 2002 Registered land Fontaine 65 days is strict deadline Mount Carmell Title owner has 2 years to evict squatter, letter isn’t sufficient. Unregistered Land S15 Limitation Act Can’t bring action to recover land 1980 after 12 years Williams v 12 years may be completed by more Usherwood than one adverse possessor but can’t be break in AP. (Pye v Graham taken to Pye v UK English AP law is compatible with ECtHR) human rights Licences Thomas v Sorrell Licences are personal, not Land Cases 7

proprietary Revocable, not binding on Bare licences 3rd parties The Calgarth Scope limited to thing it was granted for R v Sundarland CC Created expressly or impliedly form conduct/circumstances Greater London Revoked by telling licensee to leave Council v Jenkins and giving him reasonable time to do so Proprietary interest granted Licences coupled with an interest to licensee necessitating licence to go on land to exercise this interest. Irrevocable so long as interest remains. Hounslow LBC v The interest must be proprietary. Twickenham E.g. licence to on land to sever + remove trees. Webb v Paternoster Same enforceability against 3rd parties as proprietary interest it’s attached to, thus binding to successors in title. Generally expressly created. Contractual licence Entering Wood v Leadbitter Termination may equate to breach but may be permitted with reasonable notice and remedy lying in damages Hurst v Picture Instead of damages, court will Theatres Ltd intervene with equitable remedy of injunction where contractual licence terminated prematurely Denning tried to suggest Ashburn Anstalt v Contractual licences not proprietary they were proprietary Arnold interests and wouldn’t bind anyone interests + could bind 3rds not in contract. parties in Errington Estoppel Jennings v Rice Estoppel is both a shield and a sword Irrevocable and binding on Estoppel Licences 3rd parties. Taylor Fashions Requirements to establish an estoppel: 1. Assurance 2. Reliance 3. Detriment 4. Unconscionability Land Cases 8

Assurance: Gillett v Holt Assurance can be any form, words/conduct Thorner v Major If reasonable person could understand, however allusive, an assurance was given, a legal right would accrue. Assurance needs to be more specific if commercial. Has to relate to a property right, even if drawn from inferences. Reliance: Coombes v Smith Need causal link of C changing position as direct result of assurance. Greasley v Cooke Must be reasonable reliance, will be presumed unless party contesting estoppel can show otherwise Detriment: Gillett v Holt To be judged at moment person seeks to go back on assurance Inwards v Baker May include financial expenditure Suggitt v Suggitt May include quantifiable financial loss Crabb v Arun May include change to circumstances Southwell v Blackburn Giving up property will count as detriment Campbell v Griffin Lodger went over and above in looking after house, held to be detriment. Unconscionability Cobb v Yeoman Conduct must ‘shock conscience of court’ not enough to just disappoint expectations The Remedy Crabb v Arun Basis of award (giving effect to assurance or compensation) should be the minimum equity possible to do justice Enforcement Against 3rd Parties LRA 2002 s116 An equity by estoppel can bind a third party – only in registered land LRA Sch 3 para 2 Potentially enforceable as overriding interest should actual Land Cases 9

occupation be satisfied Leases Street v Mountford For a lease there needs to be 1. Certainty of term 2. Exclusive possession Facchini v Bryson Presence of both doesn’t mean lease exists AG Securities In addition to certainty of term and exclusive possession, a joint tenancy lease requires 4 unities Walsh v Lonsdale Where formalities aren’t met an equitable lease may exist provided there’s a valid contract capable of SP. Certainty of term: Lace v Chantler Must be a fixed and certain maximum duration Prudential Assurance If terms appear uncertain, court can impute a periodic tenancy where tenant has taken possession and paying rent by reference to period Exclusive Possession: Street v Mountford Attempts to disguise license as lease. By looking at reality of arrangement, court can assess agreement and whether it accurately reflects arrangement or whether it’s been inserted merely to disguise lease as licence. AG Securities Court less likely to respect freedom of contract in residential property (inequality of bargaining power) Stribling v Wickham Factors court will take into account when deciding clause for exclusive possession is real or pretence: - Relationship between occupiers - Course of negotiations - Nature/extent of accommodation - Intended/actual mode of accommodation Antoniades v Villiers Couple intended to occupy as family home, unrealistic to introduce strangers to share with them. Accommodation too small to share. Clause to introduce others Land Cases 10

had never been exercised. AG Securities Clause stating 3 others could share property held to be real and reflect reality of arrangement, clause actually exercised not mere pretence, occupants willing to share with strangers. Exceptions to exclusive possession meaning lease: Marcroft v Wagons Occupancy based on acts of friendship, no intention to create legal relations David v LB Lewisham Occupancy based on family relationships Norris Occupancy based on service as employee Marchant v Charters Occupancy as lodger where provision of services e.g. cleaning prevents exclusive possession Bruton v London Can’t grant exclusive possession if Housing Trust you don’t have that right yourself Either based on separate Multiple Occupation: leases or joint tenancy AG Securities Individual leases: each occupant must have exclusive possession of a defined area AG Securities Joint tenancy: occupants seen as single entity entitled to exclusive possession of whole. Certainty of term + exclusive possession insufficient, must share 4 unities: possession, title, time, interest. All entitled to possess whole Possession property All sign same agreement Title Antoniades v Villiers Despite signing different agreements, court found unity of title, signing of agreements was interdependent. Must obtain interest at Time same time Must occupy property with Interest same rights and obligations for which they’re jointly liable Mikeover v Brady Each occupant liable for own Land Cases 11

monthly payment, thus no unity of interest. Occupancy based upon licence. Formalities for creation: Person granting lease must Capable Grantor be capable of doing so Bruton v London Undermined this principle – lease recognised despite grantor having no proprietary estate – held occupant had lease that wasn’t binding on third parties. Formalities for agreement to grant a lease S2 LPA 1989 Agreement to grant lease over 3 yrs must be in writing, contain agreed terms and signed by both. Less than 3 yrs can be oral. Walsh v Lonsdale Valid contract of agreement to grant lease, if capable of SP, transfers an equitable interest in land to prospective tenant. T has equitable lease. Only once actual grant Formalities for grant of lease occurs can legal lease exist, it’s equitable prior to this. S52 LPA 1925 Leases of over 3 years must be granted by deed to create legal lease S1 LPA 1925 Deed must comply with formalities: clear, signed by grantor, witnessed, delivered S4 LRA 2002 for Over 7 yrs – registration unregistered land compulsory S7 for registered S52 LPA 1925 No deed required for leases of three years or less. Position in law for failing to Prudential Assurance If fail to create legal lease and T meet formalities takes possession and pays rent with reference to a period, a periodic tenancy may be implied thus making it a legal lease. Position in equity for failing Coatsworth v Johnson Failed attempt to create legal lease to meet formalities – seen as agreement to create lease by equity. Must be a valid contract capable of SP. Walsh v Lonsdale Equity views specifically Land Cases 12

enforceable contract as creating an equitable lease Walsh v Lonsdale Where conflict arises between law and equity, position in equity will prevail Sch 3 para 1 LRA 2002 A legal lease on registered land under 7 years is enforceable against 3rd parties S27 LRA 2002 Legal lease on registered land over 7 years binding if registered S32 LRA 2002 An equitable lease on registered land must be entered as a notice to be binding Sch 3(2) LRA Non-entry of equitable lease on registered land – still binding if qualifies actual occupation Termination of leases Hammersmith + Joint tenancy → notice to quit Fullham LBC v Monk given by one T will be effective on all Woolgar Landlord loses right of forfeiture where he’s waived his right i.e. he’s aware of existence of breach and does some unequivocal act which recognises continuation of lease e.g. accepting rent Serve notice, wait S146 LPA 1925 Notice Forfeiture for breach of covenants reasonable time, proceed to other than rent forfeit. Leasehold covenants Covenants to repair Lister v Lane Liability shouldn’t extend to renewal of virtually whole property Pembury v Lamdin Shouldn’t impose new improvements but these may be by-products of repair Brew Brothers v Snax Where cost of repair works amounts to significant proportion of value of property itself the works may be deemed to fall outside ambit of a repair covenant Post Office v Aquarius Shouldn’t impose obligation to correct design faults Proudfoot v Hart Standard of repair required determined by age/character/locality of property Land Cases 13

Regis Property v Tenant may be exempt from Dudley liability for wear and tea but not exempt if this leads to other disrepair Burden landlord and Implied covenants to repair override any express obligations to the contrary Smith v Marrable Where house is furnished an obligation ensure house is fit for human habitation at start of lease S8 LTA 1985 Houses at low rent → obligation to keep property in fit state Re Irvine’s Estate Keep structure in repair Quick Doesn’t extend to design faults unless this causes disrepair to structure O’Brien v Robinson Liability arises with notice S18 LTA 1927 Damages available (as well as forfeiture) for breach of repair covenants Jeune v Queens Cross Specific performance available to Properties tenant Rainbow Estates Rare but SP available to landlord if lease doesn’t provide for forfeiture Absolute covenants prohibit Covenants to not assign/sub-let: sub-letting. Qualified covenants Wilson v Rosenthal Qualified covenants allow sub- letting with landlord’s consent won’t prohibit subletting of part of it S19 LTA 1927 Landlord mustn’t unreasonably withhold consent Eastern Telegraph Subletting without consent even if landlord couldn’t have reasonable refused consent will breach qualified covenant Enforcement of leasehold covenants L | ASSIGNMENT T – A LRA 1925 Pre 1996 lease T liable due to privity of contract LTA 1995 Post 1996 T released from liability for tenant covenants BHP Petroleum ^ But not if breach is of purely Land Cases 14

personal covenant to him S24 LTA 1995 ^ Not if breach committed while T tenant S16 LTA 1995 ^ Not if T enters into Authorised Guarantee Agreement where T guarantees A’s performance of covenants. Moule v Garret Liability for breach committed by A – where you’re compelled to pay damages for another can go against other and recover sums you paid S19 LTA 1995 Liability for breach committed by A – can request overriding lease under S19 LTA 1995 giving T landlord powers over A including right to forfeit lease 1. Covenant must Spencer’s Case Pre 1996 lease – A will only be concern land liable if burden of covenants 2. Must be direct passed to him under this case relationship of L + T between T + A 3. Must have legal assignment of legal lease S3 LTA 1995 Post 1996 lease – A will only be liable if burden passed to him under this provision Spencer’s Case Pre 1996 – A only able to pursue breaches if can establish benefit of covenants passed to him via this case S23 LTA 1995 Post 1996 A can only pursue breaches post-assignment unless right to pre-assignment breaches passed expressly L – L2 | REVERSION T S6 LTA 1995 Post 1996 lease L=- L remains laible til released from liability under BHP Petroleum Release won’t be effective regarding purely personal covenants S24 LTA 1995 Breaches committed by L whilst he was landlord Land Cases 15

Moule v Garret Liability for breach committed by L2 – where you’re compelled to pay damages for another can go against other and recover sums you paid S142 LPA 1925 Pre 1996 lease L2 only liable if burden of covenants pass to him under S3 LTA 1995 Post 1996 lease L2 only liable if burden of covenants passed to him under S 141 LPA 1925 Pre 1996 lease L loses any benefit to pursue breach S24 LTA 1995 Post 1996 L loses benefit to pursue breach unless occurred when he was landlord S141 LPA 1925 Pre 1996 L2 acquires all benefit including before assignment S23 LTA 1995 Post 1996 can only pursue breaches before assignment if right to do so expressly assigned or breach of continuing nature L | T SUB TENANTS | ST South England Dairies Pre 1996 lease L can’t enforce v Baker covenants against ST S3 LTA 1995 Post 1996 ST can be directly liable to L for breach of restrictive covenants Mortgages Legal mortgages S27 LRA 2002 Registered land – must be created by deed and registered as a charge S4 LRA 2002 Unregistered land – creation of mortgage over unregistered land triggers first registration of both mortgaged estate and mortgage itself Mortgagor’s rights Toomes v Consent Clauses attempting to remove rights to redeem won’t be tolerated. Mortgagor can’t be prevent from ever getting property Land Cases 16

back Fairclough Equity won’t allow postponement of right to redeem to be such that it renders right to redeem illusory Knightsbridge Court allowed 40 year postponement clause because mortgagor would still recover property of value Noakes v Rice Rights to have collateral advantages for a mortgage will be struck out Kreglinger Acknowledgement of freedom of contract, unless term oppressively imposed a collateral advantage may be upheld Multiscience Can have oppressive or Bookbinding unconscionable terms struck out if they’re imposed in morally reprehensible way Jones v Morgan If mortgagor received independent legal advice hard to shower term imposed oppressively Undue Influence RBS v Etridge (no 2) Presumed undue influence: - Relationship between C + D of trust and confidence - Transaction appears to be one that’s disadvantageous to C requiring an explanation RBS v Etridge Position of lender where undue influence exists: lender must establish it took certain steps to ensure C received indp legal advice prior to agreement to mortgage Bank of Baroda Lender may assume solicitor has advised potential C on his own behalf and that info given was sufficient and correct Mortgagee’s remedies Four Maids Mortgagee can repossess property at any time after mortgage created – typically it’s postponed til after default occurs. AJA s36 If it’s a dwelling house, court has discretionary power to adjourn proceedings Land Cases 17

First National Bank v Mortgagor must convince court he Syed can make reasonable attempt to pay arrears within reasonable period Martinson v Clowes Mortgagee can sell property but can’t buy property himself/through an agent S105 LPA 1925 Mortgagee must pay debt to any prior mortgagee, then costs of sale, then discharge debt to mortgagee selling, then pay any balance remaining to any mortgagee next in property, and if none the mortgagor Cuckmere Brick Mortgagee must obtain a fair and true market value for the property S 91 LPA 1925 Equitable mortgage – no deed so no power of sale – but can apply for court order for sale S101+103 LPA 1925 Can appoint a receiver for legal mortgage to intercept income to pay off debt S48 LRA 2002 Registered land – priority of payment when land sold based on order which mortgages were entered onto register Easements Types of rights capable of being easements: Richards v Rose Right to support of connecting wall Borman v Griffith Right of way Miller v Emcer Right to use a toilet Simmons v Midford Right to lay/maintain drains, sewers, pipes Colls v Home + A right to sufficient light to unable Colonial Stores reasonable use of building (example of negative easement) Dyce v Lady James Categories of easements can be Hay extended with changes in society Canary Wharf Court is cautious in expanding easements categories, don’t want land to become so burdened that it effects its marketability Brooks v Young Courts interpret words in an easement clause by giving them their natural meaning Land Cases 18

Re Ellenborough Park Easements must satisfy the four elements from this case: 1. Must be dominant + servient tenement Ladbroke Retail Parks Dominant tenement must benefit from exercise of right and servient tenement burdened by its exercise – must be defined at time of acquisition of easement. Easement must be attached to a dominant piece of land. 2. Right must accommodate the dominant tenement Hill v Tupper Test for accommodation: would right still be of benefit if dominant tenement were sold to another party? Bailey v Stephens To accommodate, the DT and ST must be sufficiently proximate Moody Business had become normal use for this plot of land so commercial advantage of advertising was accepted as potential easement. Re Ellenborough Park Right can be purely recreational Jelbert v Davis If use becomes excessive courts can extinguish easement 3. Dominant and servient tenements must be owned and occupied by different persons Roe v Siddons Can’t enjoy easement against own land Kilgour v Gaddes Can exist if both properties are let to two different persons 4. Easement must be capable of forming the subject matter of the grant William Aldred’s Case Rights must be capable of reasonably exact definition, rights that require subjective interpretation may be deemed too uncertain Duke of Westminster v Court generally won’t enforce a Guild positive burden – ‘no expenditure’ rule. Crow v Wood Can enforce burden of keeping fence in good repair Land Cases 19

Liverpool CC v Irwin Positive burden allowed if express agreement of owner of ST Copeland v Greenhalf Easements mustn’t leave the servient owner without any reasonable use of his land Types of Easements S1 LPA 1925 Relevant qualifying time period + deed = legal easement Implied Grants McGuinness Implied grant of necessity must be essential to use of land Wheeldon v Burrows Implied grant of easements under rule in X – when land is divided and sold any rights should be expressively reserved however under X whenever a part of land with no previous diversity of occupation is sold easements which satisfy these criteria will mean easements will pass to grantee of land: 1. continuous and apparent 2. Necessary for reasonable enjoyment of property 3. In use by owner at time of grant S62 LPA 1925 Implied grant under statute – automatically passes to successor in title all existing easements attached to land without express mention in conveyance Easements exercised over Prescription long period of time may be acquired through prescription Remedies Weston v Lawrence Damages where some substantial Weaver interference