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June 17 Land

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June 17 Land Chief Examiner’s Report The purpose of the report is to provide feedback to centres and candidates on the candidates’ performance in the examination with recommendations about how any issues identified may be addressed. The target audience for this report are centre tutors and candidates. The report should be read in conjunction with the Suggested Answers for the examination. Unit Name: Level 6 Unit 9 Land Law Exam Session: June 2017 CANDIDATE PERFORMANCE OVERALL Candidate performance was of a very good standard with a pass rate of 64%. It should be noted that this is an improvement on the pass rate of the previous two examination sittings and with a higher number of candidates achieving grades of merit and distinction. Higher achieving candidates demonstrated not only breadth but also a depth of sound knowledge and application of the rules and principles that govern land law and as a consequence were able to answer four questions to a consistently high standard. However, it was evident that those who performed less well, including those who failed, were unable to provide four consistently good answers often producing only one or two to the requisite standard. As previously reported, common issues found in relation to both problem questions and essays include candidates failing to tailor their answer to the specific question either writing all they know on a topic or providing generic rote learnt answers. These answers achieved few, if any, marks due to the vast amount of irrelevant legal content. Furthermore, quoting sections of material from the statute books also achieves no marks, no matter how accurately recorded. The main issue concerning essay answers is a lack of structure and critical analysis. Candidates should use their knowledge and legal reasoning, develop their answer as they progress considering the merits of different approaches and arrive at their conclusion. Candidates should also avoid littering their answers with a vast number of cases and irrelevant facts. Instead, candidates should mention only a line or two about the facts and judgment to illustrate why a case is relevant. This shows the examiner that you have thought critically about which relevant case law to include. The main issue concerning answers to problem questions is a lack of application of law to the facts. It was noticeable that stronger candidates who dealt with most if not all of the issues used sub-headings that corresponded to the different parts of the question, for example, by using the parties’ names. However, weak candidates wasted time and effort by providing an introduction, which was unnecessary and irrelevant. Moreover, in some cases candidates wrote pages of an introduction to the general area of law followed by a brief and limited account of the issues involved (for example, see the comments below concerning Section B Question 1). Consequently, such answers failed to provide any advice or provide the correct advice and gained few if any marks. Candidates should avoid overly long introductions instead begin the answer by addressing the issues straight away. Overall, there was evidence that candidates relied on question spotting and the suggested answers to previous questions. Evidently, candidates were expecting similar questions to appear in this examination. Again candidates and Centres must be advised that while past papers and the relevant suggested answers are one valuable resource to aid revision they are by no means an acceptable replacement of the entire learning of the law, as outlined Page 1 of 8 and required in the unit specification. Examinations at level 6 assess the candidate on their ability to apply specific knowledge and understanding of the law to any given question asked. It does not assess general knowledge. CANDIDATE PERFORMANCE FOR EACH QUESTION: SECTION A Question 1 This was the most popular question, where candidates had to critically evaluate whether a squatter is more likely to succeed by claiming adverse possession over unregistered or registered freehold land where adverse possession was completed after 2004. Key statutes and cases include Land Registration Act 2002 s96 and Schedule 6, Limitation Act 1980 s15 and s17, s144 (1) Legal Aid, Sentencing and Punishment of Offenders Act 2012, Powell v MacFarlane (1979), Pye v Graham (2002), Buckinghamshire County Council v Moran (1990), Seddon v Smith (1877) Prudential Assurance Co Ltd v Waterloo Real Estate Inc. (1999), Lambeth London Borough Council v Bigden (2000) and Best v Chief Land Registrar (2014). Some candidates produced excellent answers evidencing sound knowledge and understanding. The answers critically analysed the three requirements, the procedure under registered and unregistered land (Sched 6 LRA 2002, LA 1980) and how easily the paper titleholder could defeat such a claim. Weaker candidates demonstrated a lack of basic knowledge and understanding. For example, candidates were unable to identify the three essential requirements and adequately explain the procedure governing registered land, particularly Sched 6 and Para 5. In addition, an overly long introduction analysing whether adverse possession was theft, while interesting, was not relevant to the specific question and meant that many marks were lost. Furthermore, no marks were gained by candidates who wrote all they knew about the general area of adverse possession or included verbatim chunks of a statute (e.g. Sched 6 and Para 5). Moreover, candidates should note that the criminal offence for residential squatting under s144 (1) Legal Aid, Sentencing and Punishment of Offenders Act 2012, does not mean that the squatter is prevented from claiming title by adverse possession: Best v Chief Land Registrar (2014). Thus, Best and s144 ought to be mentioned together. Finally, a small number of candidates who discussed adverse possession in registered land as governed by the Land Registration Act 1925 wasted valuable time and marks. The question specifically asked for an evaluation of the law where adverse possession was completed post 2004: a reminder to candidates to read the question carefully. Question 2 This question concerning leases and licences was the least popular essay. Key statute and cases include Law of Property Act s1, s52, s54 & s205, Law of Property Miscellaneous Provisions Act 1989 s1 and s2, Lloyd v Dugdale (2001), Street v Mountford (1985), Ashburn Anstalt v Arnold (1989), Lace v Chantler (1944), Somma v Hazelhurst (1978), AG Securities v Vaughan (1990), Antoniades v Villiers (1990), Heslop v Burns (1974) and Norris v Checksfield (1992). Some very strong candidates produced good answers. These candidates demonstrated sound knowledge and understanding when analysing how a lease differs from a licence and Page 2 of 8 how the courts have achieved this, which included an extensive critical analysis of exclusive possession and sham agreements. However, the majority of answers failed to analyse both exclusive possession and sham agreements sufficiently, and knowledge of case law, particularly concerning exclusive possession, was limited. Weak answers also confused the requirements of s1 and s2 LPMPA 1989; the former relates to the formality requirements for deeds while the latter concerns the formality requirements for contracts of estates and interests in land. Moreover, some candidates wrote all they knew about the meaning of actual occupation of land, which was not relevant and wasted valuable time, effort and marks. Question 3 This was the second most popular question and required a critical evaluation as to how far an easement, particularly concerning parking rights, must avoid granting exclusive possession. Overall, candidate performance was below average, particularly in part (b). Question 3(a) Key statutes and cases include Re Ellenborough Park (1956), Copeland v Greenhalf (1952), Newman v Jones (1982), Batchelor v Marlow (2001), Moncrieff v Jamieson (2007) and Kettel v Bloomfold Ltd (2012). Higher mark candidates could have also mentioned Law Commission Report No. 327 Making Land Work: Easements, Covenants and Profits à Prendre (see the suggested answer). Strong answers focused their critical analysis on the fourth characteristic of Re Ellenborough Park (1956) concerning exclusive/joint possession and the no reasonable user test used in English law (Batchelor v Marlow (2001)). Higher mark answers analysed the departure from the Batchelor test by the Scottish House of Lords in Moncrieff v Jamieson (2007) to the test of whether the servient owner ‘remains in possession and control’. Further analysis explained how English case law has reaffirmed the Batchelor test but in a manner akin to Moncrieff, using cases such as Kettel v Bloomfold Ltd (2012). Weak answers demonstrated a lack of specific knowledge by analysing the first three characteristics of Re Ellenborough, which were not relevant, and failing to understand that exclusive possession is equivalent to the grant of a lease (Street v Mountford (1985). Furthermore, analysis of case law was limited, as many candidates were unable to identify the no reasonable user test from Batchelor and incorrectly asserted that Moncrieff, a Scottish House of Lords case, is now binding on English law, which it is not. Moreover, some candidates had prepared for a problem question and discussed: “first, is the supposed right capable of being an easement and secondly, if so, how, if at all, has it been created”. Such answers were not relevant and a waste of valuable time, effort and marks. Question 3(b) Key statutes and cases include
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