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FORMALITIES unregistered Contract

Completion by s 1 LP(MP)A 1989

registered Contract  Both parties are legally bound  Holding the legal title on trust Completion  =transfer of legal estate Registration by ss4 and 27 LRA

Estate Contracts  Only in writing, why? o Promoting certainty =reducing fraud o Minimising the risk of accidental contracting o Standard terms: minimising legal errors o Land is too important asset  Between 1925 and 1989: s40 LPA 1925 o Very flexible and informal- fair very uncertain o Expensive litigation o Steadman v Steadman  S2 LP(MP)A 1989 o Single/two identical documents o Must contain all the agreed terms, min: parties, property, consideration Rossiter v Millet o Signed by both parties  S2(3): by/behalf on parties  Which the ordinary man would understand: Firstpost Homes v Johnson  E-signature? Maybe…. Golden Ocean Group v Salgocar, Ramsay v Love o NO COMPLIANCE=VOID -> part performance is not available Singh v Beggs. United Bank of Kuwait v Sahib, Yaxley v Gotts o Exceptions(5)  Short leases(=< 3 years)  Made at public auction o Also applies: mortgages, charges, leases, other interest(easements), options to buy o Merciless strictness: Keay v Morris Homes o Courts approach  Rectification is very limited s2(4) - only drafting mistakes = no adding terms Oun v Ahmed  NOT piecing together correspondence Commission for New Towns v Cooper  BUT: trivial boundary disputes- don’t need to comply Joyce v Riggoli  String of emails: probably- Green v Ireland o ‘incorporation by reference’ s2(2): main contract need to comply with the formalities, subsidiary not Firstpost Homes v Johnson  Collateral contracts: Record v Bell, Tootal Clothing v Guinea Prop., North Eastern Prop v Coleman 2010- Lord Briggs: totally ok to do it, Keay v Morris

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TEST: is the performance of the land contract conditional on the missing collateral term?  YES: cant be contained in the separate, has to be incorporated in the land contract  NO: can be included in the collateral  Gives rise to uncertainty: North Eastern v Coleman

Proprietary Estoppel  Detriment + reliance + to claimant by landowner permanent attachment and permanent enjoyment + improving the value of the property=more like a fixture  Berkley v Poulett: ornamental garden statute  Lyon and Co v London City –Vaudeville Cinema v Muriset-original intention of the object  Elitstone – Caddick v Whitstand  each limb is pointing to opposite direction: low degree of annexation but the purpose is to improve the property-> 21st century, purpose matters more: Elitestone  determining intention- deriving from purpose- at the time of creation Mew v Tristmire  relevance of damage of removal: Elitestone  part of the architectural design: D’Eyncourt v Gregory LEASES S1 LPA 1925: legal estate in land, can be equitable-lack of formalities Characteristics Street v Mountford o Certainty of term  beginning and end need to be fixed (3000 years is valid) Harvey V Pratt  orthodox: Lace v Chantler(WWII) -> Prudential Assurance v London Residuary (road widening)  relaxed: Ashburn Anstalt v Arnold (quarter notice is certain), CIB v Bello  orthodoxy maintained with a twist: Berrisford v Mexfield- lease for life is converted to a 90 year old lease by s149 LPA 1925  Periodic tenancies: NO agreement, only occupation + payment  1 period is always certain: Prudential, Lord Templeman

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 S 149(6) LPA: transferring it to a 90 year lease  S 149(3) LPA: 21 year limit Exclusive Possession: differentiates licence from lease  right to control property Street  having right to EP rather than enjoying exclusive occupation Antoniades v Villers- shams and pretences  EFFECT matter over intention of the parties: Brutton v LQHT->Kay v Lambethlandlord not having the correct estate, even the effect was a lease, EP outweighing it LDC v Nidai, Westminster Cases (Clarke)  Terms that indicates it/the absence of it: Aslan v Murphy – cleaning  Provision of services- if never provided?  Moving occupiers to another rooms Westminster CC v Clarke  Introducing other occupiers Antoniades  Retaining key: why? Aslan  Requiring the premises to be vacated Aslan  Multi occupation joint tenants? AG Securities v Vaughan  PITT(possession, interest, time, title) o P: terms, purpose, circumstances Lord Templeman Street  Antoniades: interdependent documents, even if signed separately  Mikeover v Brady: paying half + separate agreements: only licence  Lord Templeman: EP exists, BUT service occupation (however excluded from the contract), still lease -> Fachini v Bryson Denning = Fachini exceptions o Charity/friendship: Gray v Taylor o Service occupation Crane v Morris Fachini v Bryson o

Formalities  Legal o

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Lack of power to create lease: Wesminster CC v Clarke Bruton v LQHT

Post-1925  deed s 52(1) LPA 1925 + s1 LP(MP)A 1989  registration s 27(2) LRA 2002- more than 7 years o short leases: can be valid if created orally s 54(2) LPA 1925: less than 3 years o periodic tenancies: orally Hammond v Farrow Equitable o Having only equitable estate o Lack of formalities STILL IN WRITING o Entering into a legal contract, but the grant itself never occurs  Doctrine of conversion  Walsh v Lonsdale  implied periodic tenancy or equitable lease?  unfulfilled contract to create a legal lease =equity prevails o BUT does it mean that is just as good as a legal lease?  Has to be in writing s2 LP(MP)A 1989

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Specific performance has to be available May not be enforceable against purchasers  Notice against title: LRA 2002 registered o + overriding cause of actual occupation para 2 sch 3  Class C (iv) LCA 1972 unregistered o If not registered: void, even if actual occupation Coatsworth v Johnson

Forfeiture  Peaceable re-entry as self-help: can be criminal Billson  Statutory procedure o Non-payment of rent: s212 CLP 1852 o Other covenant: s146 LPA 1925  Is there a forfeiture clause?  Specify the breach, the remedy and the compensation  Court gives notice to the tenant  Relief and Waiver o Available until final court order o Van Harlaam: waiver MORTGAGES Independent property right from ownership ->transferable Traditionally a security of payment Santley V Wilde Creation: can be legal or equitable s 1(2) LPA 1925  Legal o Pre 1925: conveyance of estate o S85(1) and 87 LPA 1925  Long lease  Charge by deed of legal mortgage: became the standard form-GEE can enforce his interest o LRA 2002  

S23(1)a: only by way of charge S27(2)f: registration is essential to validity

Equitable o No legal interest of GOR o Lack of formality o Conversion + Walsh v Lonsdale o Problems: vulnerable->needs protection  Unregistered Class C(ii): binding on subsequent purchaser  Registered notice: actual occupation/ overriding interest p2 sch 3 LRA 2002 Protecting GOR  Equity of redemption=(VALUE) –(OUTSTANDING DEBT) 

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Includes the equitable right to redeem his property on paying off the debt ->conserving the property Thornborough v Baker Once a mortgage, always a mortgage After the legal date of redemption passed(usually 6 months) Preventing GEE from including cloggs/fetters Santley v Wilde  Restricting/postponing redemption date Jones v Morgan  Fairclough v Swan Brewery: illusory right for redemption  Knightsbridge v Byrne: prolonging for 40 years- investment -> commercial dealing = court reluctant  Permitting from purchase: option/pre-emption  Samuel v Jarrah Timber: void for clog, but Lord Macnaghten is questioning the hard and fast rule for business partners-> freedom of contract  Not applying the rule: separate/independent transactions o Reeve v Lisle: 10 days-> valid, if does not form part of the o o o

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even if executed 3 years later  Relevance today? Jones v Morgan- questioning it Collateral Advantages = ‘solus tie’  To be valid: must end at the end of mortgage void for clog Warnborough v Garmite: two interlinking transactionsinapplicable, substance matters Jones v Morgan: deemed to be the variant of the mortgage,

mortgage(even if included in the agreement)->valid  Sheepskin: very beneficial for both parties- no oppression  Totally independent from the land itself Alternative way of challenging them: restraint of trade o Reasonableness test Esso v Harper Garage- duration of tie is

relevant Interest rates: it has to be unconscionable (unreasonableness is not enough)  Cityland Holdings v Dabrah: 38% interest rate is unconscionable  Multiservice V Marden: Swiss franc uplift clause-equal bargaining power  Paragon Finance v Nash: impliedly not to be set dishonestly, BUT doesn’t say that it has to be reasonable Paragon Finance v Pender genuine decision, accepting Nash in principle, but says that it did not prevent GEEs to raise interests and the GORs may be forced to finance themselves elsewhere

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Possession: exist without GOR’s default o Strict liabilities if does: White v City of London Brewery o o o

prelude to sale peaceable entry: only if unoccupied Ropaileagach v Barclays- court has no jurisdiction to stop the bank after it stepped into possession stopping GEE by GOR  common law: Birmingham CPBS v Caunt – very short period  equity: Denning – Quennel v Maltby->only for enforcing security  s36 AJA 1970 amended by s 8 AJA 1973: ONLY DWELLING HOUSES  NOT if already in possession Ropaigealach v Barclays  NOT if no possession only sale Horsham Prop. v Clarke  Able to pay in reasonable time o Royal Trust v Markham, Cheltenham v Norgan(whole of the remaining mortgage term), Bank of Scotland V Zinda o Financial plan needed to prove 

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Sale by GOR: getting more money, only if in + equity o National Provincial Bank v Lloyd o Bristol West v Ellis in – equity: s 91(2) LPA 1925- directing sale o Palk v Mortgage Services: special facts, suspending

possession without AJA 36, because GOR application for sale, and the money would not even discharge the whole debt o Cheltenham & Glucester v Krausz: not allowing anything UNLESS its AJA 36, but not overruling Palk Power of Sale=recovering the security interest in form of money/express or implied, but defo the part of the contract/ o S 101 LPA 1925: has it arisen?  By deed  Money due=date of redemption passed  No express provision for sale in the contract o S 103 LPA 1925: is it exercisable?  Either 2 months arrears of interest OR  Notice served + 3 months arrears  Breach of some other terms o Effect of sale if  Not arisen: only selling the mortgage  Arisen, but not exercisable: title passing free of mortgage  Purchaser has no duty to find out the status quo Bailey v Barnes o Good faith: can act against GOR’s interest, if genuine reason is to discharge the debt  Kennedy v De Trafford, Silven v RBS- not required to do anything that’s beyond reasonableness  Meretz Investment v ACTP: improper, if its no purpose to discharge the debt o Obtaining the true market price Cuckmere Brick v Mutual Finance(planning permission kept in secret)- at the time of sale->no reasonable care needed

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Selling to itself? VOID: Farrer v Farrer. Halifax v Corbett, UNLESS the sale is for the best reasonable price Sale to associate/family: Tse Kwong Lam v Wong Chit Sen, Bradford v Ross without possession: Horsham Properties v Clarke: trespassing on his own land- not usual

CO-OWNERSHIP JOINT TENANCY s1(6) LPA 1925 Each owner is being entitled to the whole of the land 1 registry number – registered proprietors/1 set of title deeds-naming the tenants  Right of survivorship o Dies with the tenant o Nothing, not even a will changes it Gould v Kemp 

o useful+unfair 4 unities o Possession: physical, NO division of land, NO restrictions

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 Terms Street v Mountford  Purpose  Circumstances Interest: same extent, nature and duration Title: different document NOT matter Antoniades v Villiers, substance not form, and matter of law Time: interest have to arise at the same time

TENANCY IN COMMON  Undivided shares- quantifiable share  Only unity of POSSESSION must be present + other may be  NO SURVIVORSHIP  Can become through severance EFFECT OF LPA AND TOLATA  Pre 1925: investigation of titles  1925 o NO TENANCY IN COMMON AT LAW s1(6) LPA 1925 o Joint tenants are holding it on trust for the beneficiaries o Even if the conveyance says: ‘to A and B as tenants in common’ -> L: JT, E:TC o First 4 named in the conveyance s34(2) o In equity both can exist EQUITABLE INTEREST  If I, T, T absent: no EJT – but can be ETC  Conveyance NOT expressly states- equity follows law Carlton v Gooblman, McKenzie v McKenzie, Stack v Dowden  Words of severance: mentioning shares, “equally’” doesn’t suffice  If no WOS: equity follows law “to A and B”-> LJT + EJT

BUT if intention is clearly different Jones v Kernott  Stack v Dowden : NOT follow the rule- common intention at acquisition, but later deciding as a tenancy in common, due to their conduct Baroness Hale  Favours TC SEVERANCE  Statutory s 36 LPA 1925 o Written notice- unilateral o Kinch v Bullard: sending is enough-> registered post: deemed served, unless returned undelivered Re 88 Berkeley Road o Re Drapers Conveyance not need to be express oral agreement can prevent it White v White o only if EO=LO- husband and wife Harris v Goddard  Common law Williams v Hensman o Acting on one’s share  Manifesting intention, very act severes  Valid and enforceable + FORMALITIES  Sale, mortgage First National Bank v Hegerty, bankruptcy Re Dennis, forging signature Ahmed v Kendrick -> only affecting the fraudster o Mutual agreement  No specific, no writing needed  Has to be very really mutual, with all tenants o Mutual Conduct: flexible- demonstrating will to severe/ACTS suffice  Burgess v Rawnsley -> Davis v Smith  Pennycuick: facts needed  Denning: intention is enough o

THE TRUST OF LAND  S34 and 36 LPA 1925 + part 1 TOLATA 1996 o duty to hold the land on trust for the beneficiaries o trustees holding the proceeds of sale – equitable owners’ rights are overreached o NO DOCTRINE OF CONVERSION: interest is transferred to the proceeds of sale o Power to sell: registered- have to agree o When trustees are not beneficiaries City of London v Flegg o not same legal and equitable owners HSBC v Dyche 

sale by all trustees- overreaching the equitable owners interest s2(1)(ii) and 27 LPA 1925 only 1 trustee: NO

 ADVANTAGES 1) value of land is kept + simplifying conveyance + easy purchase 2) keeping rights and interests safe  NO investigation needed  Easy purchase: to the proceeds of sale  Trust is a practical tool

 Trustees must agree on sale-> no unfairness DISADVANTAGES  disputes as to sale s15 TOLATA o intentions of persons established Jones v Challenger purpose of property held welfare of minors Edwards v Llyods-relevant, only postponing interest of secure creditor : balancing -> Bank of Ireland v Bell, First National Bank v Achampong Edwards v Lloyds o wishes of equitable owner ordering sale: Bell, TSB v Marshall, Anchampong refusing sale: Mortgage Corp v Shaire, Edward v Lloyds bankruptcy: s 335A Insolvency Act NO overreaching: s 2(1)(ii) and s27 LPA 1925- 2 trustees rule o Subsequent EO , LO sells the house  If registered and discoverable occupation by p2 sch 3 LRA 2002- NOT overreached  If registered, but not in occupation- overreached  Unregistered: Tizard o If not money paid: Bank of India v Sood- but no money was payable o o o

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EASEMENTS Usually positive rights: right of way Sometimes negative: right of light, right of supporting building Re Ellenborough Park- Lord Evershed 1. must be 2 pieces of land: dominant and servient a. =two estates, that can be identified at the time of making b. Cannot exist in gross: London & Blenheim Estates v Ladbrokes 2. owned/occupied by a different person a. granting a lease(but not licence!!!!) is valid: Wright v Macadam 3. must accommodate the dominant tenament a. question of fact: must effect the nature, quality, mode of use b. Re Ellenborough Park: enjoying the garden can be, but if purely recreational can’t be c. Cant confer purely personal rights, but what about business? i. Hill v Tupper: boats on canal- NO ii. Moody v Steggles: sign advertising pub- YES iii. Platt v Crouch: benefit for hotel from mooring boats- YES iv. Ladbrokes: right to walk over and park cars, supermarket- YES 4. must be capable of forming the subject matter of the grant a. sufficient precision needed b. what cannot form i. good view Re Aldred ii. right to privacy Browne v Flower iii. receive radio signal Hunter v Canary Wharf iv. to wander all over the servient land Re Ellelnborough

c. capable grantee and grantor d. too great burden i.e.: spending money Rance v Elvin i. judicial reluctance to approve negative easement: Phipps v Pears ii. BUT fencing: Jones v Price- anomalous e. cannot amount to possession i. Copeland v Greenhalf: claim amount to joint user-> NO ii. -> Grigsby v Mellville(cellar), Hanina v Morland(flat roof for sunbathing) iii. Miller v Emcer Products(using the toilet in an office block), Ward v Kirkland(infrequent access to maintain building) iv. Right of storage: Wright v Macadam- YES ->question of degree: London & Blenheim v Ladbrokes, Moncrief v Jamieson- rejected by Lord Scott v. Parking: two approaches in case law- owner of ST retaining reasonable use 1. Batchelor v Marlow = reasonable use - followed 2. Moncrief v Jamieson, Lord Scott = possession and control 5. must be a proximity between the two pieces of land Creation  Can be legal/equitable s1 LPA 1925 o legal: adjunct to a legal estate + deed s52 LPA 1925 and s1 LP(MP)A 1989 + registration s27 LRA 2002 o equitable: adjunct to an equitable estate/ adjunct to a legal estate BUT lack of formalities s2 LP(MP)A 1989, written contract Walsh v Lonsdale / proprietary estoppel Ives v High  Express o Two owners by agreement o On transfer in the conveyance  Grant= in favour of purchaser  Implied: only on transfer o Necessity (reservation too): land would be useless without the easement Union Lighterage v London Graving Duck  Landlocked properties? Right of way Nickerson v Barraclough  Not convenience: Walby v Walby  Wong v Beaumont: real necessity must exist o Common Intention (reservation too):  joint intention needed, not necessity Stafford v Lee-right of way for construction  Pwllbach Colliery v Woodman-necessary to give effect o Wheeldon v Burrows: applies when selling off the part of one’s land, only grant    

‘quasi easements’: having the potential to be easements has been exercised by the owner before selling can be expressly excluded requirements(unclear if alternatives or cumulative)  continuous and apparent o =constantly available o Has to be visible on ST Borman v Griffiths  reasonably necessary: not precisely defined - question of fact

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o Millman v Ellis: using a lay by- YES o Borman v Griffiths: using a rear- otherwise front inaccessible o If theres alternative? NO Goldberd v Edwards  quasi easement has to be exercised at the time of sale –not that strict Costagliola v English  approach:  Wheeler v Saunders: more emphasis on RN  Ward v Kirkland: CA must be satisfied for all easement, RN for negatives S62 LPA 1925  Only on grant  MAGIC: licence can become a legal easement Wright v Macadam  Limitations  Previously being an easement and exercised: Green v Ascho Horticulturalist  To conveyances, BUT NOT to contracts of sale Borman v Griffiths  Can be expressly excluded  Prior diversity of occupation Sovmots v SSE, Long v Gowlett o Narrowing the scope of the statute o Distinction with Wheeldon v Burrows o

Wheeldon v Burrows 1 common seller Continuous and apparent Reasonably necessary Legal/equitable

BUT: Platt v Crouch- no need for prior diversity in relation to CA S 62 Different occupation but same ownership Diversity of occupation

Only legal Can be expressly excluded

For registered land  See at reg...