Land Law 1 Assessment Report January 2020 PDF

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Land Law 1 January Assessment Report 2020 [Please note: the feedback in this report is applicable to students on all three Land Law 1 modules (LAA202, LAA202C and LAQ302). The statistics relate to LAA202 combined with LAA202C. There are no separate statistics provided for LAQ302 due to the very small size of the cohort on that module.]

Overall statistics for LAA202/C (before moderation etc) The average mark for the module (ignoring zeros for non-attendance and non-submission) was: 55.44% (almost identical last year’s to 55.46%). The top mark was: 87% (last year 82%). The assessment was the same this year as last year: with an MCQ examination worth 65% of the module mark and a coursework worth 35%. The coursework element is the only one in the second year core Law modules and is intended to ensure that all second year students have at least one opportunity to write a piece of coursework and receive feedback on it. Overall Module Marks by classification n=274 Jan 2020 First 11% 2:1 23% 2:2 36% 3rd 25% Fail 4%

2019 17% 25% 33% 20% 5%

Coursework MCQ exam marks marks n=280 n=277 Jan 2020 2020 2019 8% 5% 16% 32% 41% 18% 43% 39% 29% 12% 10% 21% 4% 4% 16%

2019 22% 21% 22% 21% 13%

The tables below allow a comparison of the performance profile of students who had full or almost full seminar attendance record, students who attended only one or no seminars, and the cohort as a whole. There is a clear picture here particularly around firsts and fails, and particularly in relation to the MCQ marks. There seems to be a clear relationship between success in assessment and attendance at seminars. To pull out a couple of examples, 56% of those who attended all or almost all of their seminars achieved a 2:1 or first in the module, compared to 34% of the cohort as a whole and only 13% of those who had very low seminar attendance. The average marks among the three groups also fall into a very clear pattern. Those who went to all or most of their seminars were sixteen times more likely to get a first in the MCQ exam than the low attenders, and twice as likely as the cohort as a whole. The same analysis was carried out last year, with very similar results. These figures are consistent with the hypothesis that attendance at seminars is likely to improve performance. Certainly worth bearing in mind when deciding whether or not to attend. Overall Module Marks by Attendance % Whole cohort (n=306) First 2:1 2:2 3rd Fail

11 23 36 25 4

Low seminar attendance (n=102) 1 12 41 31 14

High seminar attendance (n=94) 21 35 27 14 3

Average mark for low attenders Module as a whole Coursework MCQ exam

Average mark for high attenders 48 55 46

Average mark for whole cohort 60 61 60

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55 58 54

Coursework marks by attendance %

First 2:1 2:2 3rd Fail

Whole cohort (n=280) 8 32 43 12 4

Low seminar attendance (n=98) 4 19 52 17 6

High seminar attendance (n=94) 10 40 30 2 0

MCQ exam marks by attendance % Whole cohort (n=277) 16 18 29 21 16

Low seminar attendance (n=96) 2 11 38 22 27

High seminar attendance (n=92) 32 26 16 20 5

Multiple Choice Examination Statistics:

First 2:1 2:2 3rd Fail

MCQ exam marks n=277 Jan 2020 2019 16% 22% 18% 21% 29% 22% 21% 21% 16% 13%

2018 26% 24% 27% 17% 6%

The average mark for this exam was: 53.79% (down from 56% last year and 59.5% the year before) The top mark was: 95% (last year: 92.5%). Overview: Lots of students did very well in this exam, but there were a significant number of fails too. There were 10 questions on each of the four seminar areas. The first batch of questions focussed on the meaning of land, on estates and interests and on the effect of contracts concerning land. 81% of students identified the correct answer to a question on intrusion into airspace; 71% recognised the ratio of Bocardo; only 36% recognised that the duration of an easement can affect whether it takes effect in law or in equity; only 33% identified the right answer to a question on removal of tenants’ fixtures; 59% could identify questions to be asked in establishing whether or not an item has become a fixture; 47% could identify the sort of interest created by the grant of a lease including a right of way (i.e. was the right of way a legal easement or an equitable easement or a licence or an estate contract); 64% knew that a lease can be legal or equitable; questions on the effect of contracts for the sale of land (as opposed to a conveyance of land) were not well answered; only 36% identified the right answer in relation to a scenario concerning removal of tenants’ fixtures after the lease has ended. Areas of weakness here were, as highlighted in last year’s exam report, formality requirements, including the effect of a valid contract, and the effect of exchange of contracts, as well as the result of the express granting of an easement by deed. The second batch of questions was on adverse possession. There were three scenario-based questions concerning: the exceptions to the usual automatic effect of serving a counter-notice in relation to an application by an adverse possessor to be the registered proprietor of the land; the effect of successive periods of adverse possession in relation to land which is unregistered; and the effect of a unilateral licence granted by the owner of the land. Here, students struggled most with a a

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question on the effect of adverse possession against a tenant under the LRA 2002; and with a question on the impact of the owner’s future plans for the land. On co-ownership, there were questions on the factors in s 15 Trusts of Land and Appointment of Trustees Act 1996 and s 335A Insolvency Act 1986, on severance, on over-reaching, and on the devolution of the legal and beneficial estates in different scenarios. As with previous cohorts, student performance was not strong on the mini-scenario questions on the devolution of the legal and beneficial estates. This was despite the fact that we had worked through almost identical questions to some of these in the lectures and the co-ownership seminar. There was greater strength on severance. Not many students were sufficiently familiar with the statutory factors in s 15 and s 335A. There were five mini-scenario based questions on registration of title and five other questions. Questions focussed on: circumstances in which an interest will have over-riding status; interests which require ‘completion by registration’; the applicability of sections 28 and 29 LRA 2002; what amounts to a registered disposition of a registered estate for valuable consideration for the purposes of s 29 LRA 2002; on the circumstances in which an easement would be binding on a purchaser; and, on the effect of failure to comply with formality and registration requirements. Performance in the questions on registration of title was again overall weaker than on the other topics. Overall feedback on the MCQ element This is the same feedback as was provided last year because the pattern of performance was strikingly similar. The two things that are most striking looking at how well students did on the different questions were as follow: 1. Many of you were not sufficiently familiar with key statutory provisions. As a law student you don’t need to learn swathes of statute by heart, but you do need to have a sound grasp of the effect of key provisions, and of key phrasing where that is significant. So, for example, we spent time on the course looking at section 15 TLATA 1996 and section 335A Insolvency Act 1986. Each of these sections lists (a small number of) factors which the court will take into account in particular circumstances. We would expect you to be able to identify those factors. In other cases, it’s the effect of the provision that is key. So, for example, you needed to know the effect of sections 29 and 96 LRA 2002. 2. While there were some questions that bucked the trend, generally performance was not very strong in questions which focused on underlying principles or concepts. Performance was stronger on the easily compartmentalised sections of the course (like the identification of fixtures, or the operation of the rules on adverse possession) but was much less strong on overarching concepts (like the effect of particular dealings in law or equity, the effect of a contract, the devolution of the legal and equitable interests on death of a co-owner, and the key principles upon which the LRA 2002 operates). Students struggled with questions on formality requirements, co-ownership and registration of title. We know that Land Law is a challenging subject and that seeing how the underlying concepts work together in different contexts can be hard. We know that lots of you work really hard to try to get to grips with it all. The pattern of performance on this exam suggests however that some of you might benefit from putting more time into mastering the material covered in more depth and detail.

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Coursework element Statistics: Coursework marks by classification (n=280) 2020 First 8% 2:1 32% 2:2 43% 3rd 12% Fail 4%

2019 5% 41% 39% 10% 4%

The picture of the overall performance in the coursework is in the table above. This was the first time we had used our new marking guidance and assessment criteria. The average mark for the coursework was 57.65% (this compares with an average last year of 58.59%, and with an average mark for the written section of the exam the year before of 52%). As can be seen, the majority of students again fell in the 2:2 and 2:1 brackets (75%). The most significant change when compared to last year is in the proportion of students getting a 2:1, which is down by 9%. The top mark was 78% (the same as last year)

General feedback on the 2019/20 coursework Overview: The coursework question asked students to critically evaluate the judicial interpretation of ‘exceptional circumstances’ under s 335A(3) Insolvency Act 1986 in relation to the exercise of the courts’ discretion under s 14 Trusts of Land and Appointment of Trustees Act 1996. Students were given the following further guidance: This question is asking for a consideration of the interpretation of the provision in the Insolvency Act 1986 which gives a court the power to refuse or postpone sale of land co-owned by a bankrupt only where ‘exceptional circumstances’ prevail. The courts have taken a very strict approach to the concept of ‘exceptional circumstances’ in this context. You are being asked to consider the approach adopted and to assess whether this approach seems justifiable/inevitable/sensible/human-rights compliant. Students were also referred to a couple of sources to help with preparation for this assignment. In order to produce a strong answer student needed to: -

Demonstrate their understanding of the context in which s 335A(3) of the Insolvency Act 1986 operates; Demonstrate their understanding of how judges have interpreted ‘exceptional circumstances’ in this context; Critically discuss the prevailing judicial approach.

Some students did a really good job. There were plenty of strong answers showing a really good grasp of the issues and setting out to address them in a sensible way. There was often a solid 4

demonstration of legal knowledge, drawn largely from primary sources and the secondary sources recommended on the course. The better answers went beyond this and considered additional journals, with the exceptional answers going beyond the standard considerations of what the law is, and considering why the law was brought in and Parliament’s intention. There were, however, some clear weaknesses in answers at times, including mis-stating the test, confusing the Insolvency Act and TOLATA, and failing to consider the interpretation of the courts in any detail. There was generally a solid understanding of the nature of the approach that the courts had taken and most answers that passed made a good attempt at explaining the cases and their meaning. This was done at a mixed level, however, with some of the cases being poorly or wrongly explained or with inaccurate interpretations being put forward. The better answers identified the crucial cases and focused on those, while the weaker papers tended to seek to examine every single case in detail. The Human Rights Act 1998 and the European Convention on Human Rights provided a focus point for a lot of papers although this was often done in a narrative tone with an explanation of the case of Barca v Mears and some brief discussion about the debate that has occurred over it. The distinction between papers that achieved a, typically, 2.2 mark and those that achieved higher marks was normally in the area of analysis. Too many papers settled for setting out what the law is, often with a very brief analysis at the end which led to a conclusion that was unsupported by any real argument or analysis. Those who achieved the higher marks typically sought to examine whether the law was appropriate or not and sought to analyse why the courts have taken the approach that they have, whether it is justifiable and what the arguments against it being so were. The better answers yet looked at possible alternatives and examined these or drew in multiple secondary sources to lend weight to their points. There were a number of correctable errors including typos, inappropriate referencing of judges (they should always have their title included) and poor use of tenses when referring to cases that have occurred in the past. The following feedback points are probably the ones that are most likely to be of use to most students. Common things picked up by markers: 

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Students often did not make clear the context i.e. that we are concerned with situations where a co-owner of land is bankrupt, and an application has been made for the co-owned land to be sold and that application has been made more than a year after the bankruptcy began. We know we are concerned with this situation because this is when s 335A(3) applies. The section gives the court the power to postpone or refuse to order sale if there are ‘exceptional circumstances. Not giving a clear explanation of the judicial reasoning behind the decided cases. Most answers referred to the key cases and explained that exceptional circumstances were or were not found in them, but far fewer focussed on the reasons given for these outcomes. It is in the judges’ reasoning that we find their interpretation of the words of the section (which is what the question asked students to focus on). So stronger answers explained that the cases (notably Re Citro and Re Bremner) tell us that ‘exceptional’ is to have its ordinary meaning, and that the ‘test’ is whether or not the circumstances fall within or without the ‘range of problems which can be expected to arise from the process of bankruptcy … or wholly outside that range’.

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Not explaining the point at the heart of the judge’s questioning of the prevailing approach in the Barca v Mears case. Lots of students referred to Barca and explained that the judge in that case had said a re-appraisal might be needed in order to ensure compliance with the European Convention on Human Rights, but few explained the key basis of this point. In Citro, the majority had concluded that ‘ordinary’ consequences of bankruptcy, no matter how severe, could never be considered ‘exceptional’ (because they were ‘normal’ consequences, that just happened to have serious or far-reaching implications). Even in Citro there was some evident discomfort with this conclusion. In Barca the judge raised the question of whether it might sometimes be necessary to consider not just ‘extraordinary’ consequences, but also particularly serious ‘ordinary’ consequences as ‘exceptional circumstances’ under s 335A(3). He was of the view that this approach would more readily satisfy the requirements of the ECHR (under which the rights to home, and family life and the right to enjoyment of property might come into play when an application has been made for someone’s home to be sold). Lots of students made reference to ‘human rights’ arguments, but few accurately explained where these rights come from. This wasn’t a central part of this answer, but if you are going to refer to human rights arguments, you need to explain which particular rights are engaged in the situation under consideration (here potentially, Art 8 and Art 1 of Protocol 1 of the European Convention on Human Rights). Please also note that these rights are not ‘contained’ or ‘found’ in the Human Rights Act 1998. The rights are in the European Convention on Human Rights. The HRA 1998 (basically) allows us to rely on those rights in our courts, and puts public authorities (including courts) under a duty to act in accordance with the Convention and to interpret the law if possible so as to comply with the Convention (where this isn’t possible, a declaration of incompatibility has to be made).

General feedback on coursework (not just on the 2019/20 question) The following contains examples relating to a number of questions but is intended to be of general use to students. It might be worth a read to get more insight into common pitfalls in legal writing and how to avoid them. 1. Introductions Many students struggle to write a good opening paragraph. You should aim to use your opening paragraph to explain the context and identify the key issues you are going to be discussing in your work. Some examples of common poor practice might help clarify the advice here. Common Approach 1: ‘this is what I’m going to do’ Example 1: Overriding interests and their role in dealings with registered land is a controversial topic. In this essay I will be attempting to critically evaluate this question whilst alluding to academic opinions and the legislation surrounding overriding interests. Example 2: Throughout this essay I will be critically evaluating the role of overriding interests. The essay will include analysis on the Land Registration Act 1925, the Land Registration Act 2002 and reports from the Law Commission. I will also be addressing actual occupation, easements and leases. These examples demonstrate an approach taken by quite a lot of students. The intention is good here, there is an attempt at introduction: the writer is saying what they are going to do in the answer. The problem however is lack of content. What is written here amounts to little more than saying, ‘I am going to address the question’. What you need to try to do instead is to identify the key issues and questions that are going to crop up and be discussed in your answer. 6

Common Approach 2: introduces the subject as a whole Example: This is an essay about land law. The Law of Property Act 1925 provided the legal definition of land as land of any tenure, mines and minerals, buildings and parts of buildings and corporeal hereditaments, also incorporeal hereditaments and an easement or privilege or benefit in or over land. A person cannot own land outright but will own an estate in the land. An estate is a bundle of rights over land. We see opening paragraphs like this in relation to every assignment. Why is this not an effective opening paragraph? It is far too broad; it makes no mention of the topic the question focusses on; it is unnecessary information that contributes nothing to a consideration of that topic. You don’t need to start off this broad, you should aim to focus on the particular topic from the start and throughout. Common Approach 3: introduces the topic, but not an answer to this question Example: Registration of title to land was introduced on a large scale by the Land Registration Act 1925. The LRA 1925 was replaced by the LRA 2002, which came into force in 2003. Both pieces of legislation allow for interests which ‘override’ the register, that is interests which are binding on a purchaser, despite not appearing on the register. The main categories of such ‘overriding’ interests under the LRA 2002 are short l...