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零散笔记汇总版Table of ContentLegislation ................................................................................................... Topic: transfer of freehold estate ................................................................... Topic: Lease or License (W1&8) ..............................

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零散笔记汇总版

Table of Content Legislation................................................................................................... 1 Topic: transfer of freehold estate...................................................................1 Topic: Lease or License (W1&8).....................................................................4 Topic: what is land......................................................................................15 Topic: Easement......................................................................................... 17 Topic: Freehold Covenants..........................................................................28 Topic: Mortgage.......................................................................................... 36 Topic: enforcement of interest in land..........................................................45 Topic: Co-ownership...................................................................................51 Tpoic: Lease (W8~10)..................................................................................57

Legislation Abbreviation LPA 1925 LP(MP)A 1989 LRA 2002 TLATA 1996 LTA 1954 LTA 1927 LTA 1988 LTCA 1995

Full name Law of Property Act 1925 Law of Property (Miscellaneous Provisions) Act 1989 Land Registration Act 2002 Trusts of Land and Appointment of Trustees Act 1996 Landlord and Tenant Act 1954 Landlord and Tenant Act 1927 Landlord and Tenant Act 1988 Landlord and Tenant (Covenants) Act 1995

Topic: transfer of freehold estate Three stage process: [1] exchange of contracts (voluntary and not legally necessary but common in practice) [2] completion of the deed (mandatory) [3] registration (mandatory) Three stage for transfer Exchange of contracts

Enquiries When an offer has been accepted, and both seller and buyer have agreed in principle to the sale and purchase, the buyer will normally make various enquiries before committing to a purchase by the formal exchange of contracts. This will involve:

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carrying out searches of the public registers and confirming that the

seller actually owns the land;

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finding out about any proprietary rights which benefit or burden the land. Common examples include whether the land has the benefit/burden of a right of way or is subject to a leasehold estate. These are practical steps that the buyer’s and seller’s solicitors carry out before the contract is entered into.

Contract for sale of land Once the buyer is happy to commit to the purchase, the seller and buyer enter into a binding contract in which they agree the price and other terms. The buyer does not collect the keys at this point, it is just the point at which the parties become legally committed to buy/sell the land. The buyer usually pays a deposit to the seller at this stage. Until the contract is entered into, both parties can pull out of the deal without incurring any legal liability. Formality requirements for contract The contract is not necessary. But if entered into, contracts for the sale of land require certain formalities in addition to the general rules of contract law. All land contracts where the subject matter of the contract is land must comply with LP(MP)A 1989, s2. All three of the following requirements must be satisfied to have a valid land contract: 1. The contract must be in writing. 2. It must contain all the expressly agreed terms. 3. It must be signed by both parties. Note: no need to date the contract! Completion of the deed

Deed is a written legal document known as a conveyance in unregistered land or a transfer in registered land. Time for completion Completion of deed usually takes place some weeks after exchange of contracts, but it can take place at the same time, which is called "simultaneous exchange/completion" in practice. Requirement for a valid deed A legal estate must be transferred or created by deed: LPA 1925, s 52(1). It is obviously very rare that a freehold estate is created, but a freehold estate is commonly transferred. This is because of the enduring nature of the freehold estate. The requirements of a valid deed are set out in LP(MP)A 1989, s 1: 1. A deed must be clear on the face of the document that it is

intended to be a deed. [labeled] 2. The deed must be validly executed. [witnessed] 3. The deed must be delivered. [dated] A standard form of transfer deed is used, called a TR1, which is a form prescribed by the Land Registry. Intended to be a deed satisfied by labelling the document as a deed. Validly execute the deed

Valid execution means that where the grantor (i.e. the seller) is an individual, then the deed must be signed by the seller in the presence of a witness. The witness needs to sign the deed to confirm that he or she has witnessed the signing of the deed by the individual entering into that deed. This is described as 'attesting' the signature in the statute. There is no legal requirement for a buyer to sign the deed. However, in practice both parties tend to execute the deed.

Deliver the deed

Delivery requires an acknowledgement that a person entering into a deed intends to be formally bound by its provisions. In practice, delivery takes place by dating the document, which the parties’ solicitors will do.

Practically speaking it is at the point of completion when the buyer pays the balance of the purchase money to the seller and the seller moves out of the property and hands the keys to the buyer. The sale does then trigger a legal requirement to register the land for the first time at the Land Registry. (LRA 2002, ss 4 and 6.) Registration

The final stage of transfer of a freehold estate is registration where you 'tell' the Land Registry that the buyer is the new owner of the land. The buyer does this by sending the completed deed to the Land Registry.

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In registered land the legal title does not transfer until registration has taken place (LRA 2002, s 27(1).) This means the buyer is not recognised as the legal owner of the estate until registration has taken place. In unregistered land the legal title is transferred upon completion of the deed. The new owner must then register the land on the land register for the first time (first registration) within two months of completion, otherwise the legal title will revert back to the seller (LRA 2002, ss 4 and 6.)

Note: the Land Registry is a national non-ministerial department which keep a register recording who owns each piece of land in England and Wales. Triggering events for mandatory registration The "triggering events" under LRA 2002 are: 1. Transfer of the freehold estate by sale, gift, or court order. 2. Grant of a lease for a term of more than seven years. 3. Assignment (transfer) of a lease of unregistered land with more than seven years to run. 4. An assent, vesting assent or vesting deed which is a disposition of the freehold or a leasehold with more than seven years to run (this refers mainly to transfers on death.) 5. The grant of a lease to take effect in possession more than three months after the date of the grant ( i.e. future leases.) 6. A first legal mortgage of the freehold or of a leasehold with more than seven years to run.

Topic: Lease or License (W1&8) 1. Definition A lease is a proprietary right in the land (LPA 1925, s 1 (1)(b)), known technically as a "term of years absolute" and defined in LPA 1925, s 205 (1)(xxvii). - It gives the holder a right to use and enjoy the land for the duration (term) of the lease. - It is enforceable in rem. A licence is a personal permission to occupy the land. It justifies what would otherwise be a trespass. - It is enforceable in personam and not capable of binding third parties.

2. Label given by the parties Street v Mountford Where the parties label it a licence while the court found it a lease in substance In commercial setting, the courts are more prepared to accept the reality of the label 'licence' than they are in the residential context as there tends to be more equality in bargaining power, with commercial leases often negotiated and parties legally represented.

3. Substance of arrangements The "payment of rent" is not essential (LPA 1925, s 205(1)(xxvii); Ashburn Anstalt v Arnold.)

Three substantial elements in Street v Mountford: Certainty of term

The tenancy must be granted for a certain duration. This means you need to know when the arrangement will end. Lace v Chantler

A lease "for the duration of the war" failed for lack of certainty. Two ways to evidence a certain term: fixed term or periodic term Fixed term A fixed term exists where the maximum duration of the arrangement is known from the outset (e.g. 1 month, 1 year, etc.) Once a fixed term lease is created, neither party can unilaterally bring the lease to an end earlier unless there is a break clause present in the lease enabling them to do so.

Periodic term A periodic tenancy is technically a lease for one period (e.g. weekly, monthly, quarterly, etc.). It goes on extending itself automatically until either landlord or tenant give notice to terminate the tenancy ("a notice to quit"). Each period is seen as a separate lease with its own certain term. The 'term' of the periodic tenancy depends upon the period by reference to which the rent is calculated, rather than the intervals at which it is payable. e.g.: [1] An occupier was asked to pay £500 per month- this is a monthly tenancy. [2] The tenant agrees to pay £10,000 a year by four quarterly payments - the tenancy is a yearly tenancy not a quarterly tenancy, because the rent is calculated annually.

Periodic term may be created expressly or impliedly. Expressly where there is a written agreement documenting the agreement. Impliedly where there is nothing set out in writing, but the certain term arises by looking objectively at all relevant circumstances including payment and acceptance of rent on a periodic basis. Prudential Assurance Co Ltd v London Residuary Body At the outset - not a lease; later become a yearly lease due to tenant's payment of rent by reference to a year. FACTS: A piece of land was sold to the Greater London Council. It was leased back to the seller on a lease which was to continue until the land was required by the council for road widening purposes. On the abolition of the Greater London Council, the freehold reversion passed to the London Residuary Body (LRB). The LRB had no authority to create roads but served six months’ notice bringing the 'lease' to an end.

HELD: The House of Lords held that the arrangement was for an uncertain period at the outset and was therefore not a lease. The court did, however, say that the land was held under a yearly periodic tenancy that had arisen by virtue of the tenant’s possession and payment of rent by reference to a year.根据实际情况做出的判断。 Exclusive possession

(1) Definition The right to exclude all others from the property, including the landlord. National Car Parks v Trinity Development Co Exclusive possession means the ability to exclude all persons, including the landlord, from possession save in so as far as the landlord is exercising a right of re-entry conferred by the agreement. (2) Exclusive possession vs exclusive occupation Exclusive possession is the right to exclude others from the land. Exclusive occupation describes a situation where a person occupies the land on his own without others.

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Multiple occupiers are capable of having exclusive possession together if they can show that four unities of joint tenancy is satisfied.

Exclusive occupation alone is insufficient for a lease to exist but may provide evidence of the existence of exclusive possession. (3) A question of fact Exclusive possession is a question of fact. We should examine the substance of the agreement (S v M). The court will look at the reality of the situation. Even if a clause appears to defeat exclusive possession but has been inserted to a lease only to make what would otherwise be a lease appear like a licence, it will be thrown out as a sham. Common scenarios where the issue of exclusive possession arises: (1) the landlord retains a key; (2) the landlord provides services; (3) there is a sharing clause. Retention of a key (inconclusive)

The fact that a landlord retains a key to the premises may make it appear as if the occupant does not have exclusive possession. However, it is the purpose for which the key is retained that matters. For example, if the key is used only in an emergency or by arrangement, then exclusive possession may still exist. Restricted or unrestricted access The courts will look at whether any right of access the landlord has is restricted or unrestricted.

Street v Mountford If the access is restricted e.g. 'to carry out repairs' then this is seen as more of an acknowledgement of exclusive possession by the landlord, rather than something that will defeat it. Aslan v Murphy The court held 'there is no magic in the retention of a key’ ….. it will not determine the nature of arrangement either way. Providing service

If the landlord provides attendance or services there is a licence not a tenancy (Marchant v Charters; Markou v Desilvaesa) - think about the situation of hotel/airbnb! Services would include cleaning, changing linen etc. The occupier is simply a lodger provided the services are actually carried out and a lodger will never enjoy exclusive possession of the premises.

Sharing clauses If a landlord reserves the right to share the property with the occupiers or reserves the right to introduce others to share, that may mean that there is no exclusive possession, as the occupier cannot exclude whoever the landlord is able to introduce. Genuine clause or simply a sham All of the circumstances must be looked at to see whether this is a genuine clause or simply a sham to defeat exclusive possession, as was made clear in A G Securities v Vaughan and Antoniades v Villiers both reported at [1990] 1 AC 417t. A G Securities v Vaughan No exclusive possession FACTS: The occupants lived in a large flat with four bedrooms and spacious shared accommodation. The occupants, at least at first, did not know each other. They all signed separate agreements setting out the terms of their occupancy; the agreements contained different monthly payments and began at different times. The landowner reserved a right to introduce others to share the flat up to a maximum of four people. HELD: The court held that the arrangement was a sensible and realistic one to provide accommodation for a 'shifting population of individuals’ who were genuinely prepared to share the flat with others introduced from time to time who would, at least initially, be strangers to them' and therefore the occupiers did not have exclusive possession of the flat. Antoniades v Villiers

Exclusive possession identified FACTS: The accommodation comprised a small attic flat with a bedroom, sitting room, kitchen and bathroom. The occupiers, a couple, had been looking for somewhere to live together for several months. When they viewed the flat they asked for a double bed to be provided. They signed separate agreements which were identical; including the level of payments. The agreements reserved a right for the landowner to introduce others to share and indeed to share the premises himself with the occupants. They also contained acknowledgements that the occupants did not have exclusive possession and that the agreements constituted a licence and that the agreements would be terminated if the parties married. HELD: The House of Lords held it could not realistically have been contemplated that the landlord would either himself use or occupy any part of the flat or put some other person in to share accommodation specifically adapted for the occupation by a couple living together. In respect of the clauses Lord Oliver commented 'these clauses cannot be considered as seriously intended to have any practical operation or to serve any purpose apart from the purely technical one of seeking to avoid the ordinary legal consequences attendant upon letting the appellants into possession at a monthly rent'. The following circumstances should therefore be considered when determining if a sharing clause is genuine or a sham: 1. The size and nature of the accommodation – would it be realistic to introduce others into the accommodation given its size? 2. The relationship between the occupiers (if there is more than one) – would it be appropriate to introduce another to share given the relationship between the occupiers? 3. The wording of the clause (i.e. how widely it is drafted, as the wider it is drafted, the more likely it is a sham clause.) 4. Whether the clause has ever been exercised – if it has not been exercised then this may indicate it is a sham clause.

Business tenancy Street v Mountford is equally applicable to non-residential tenancies. A business tenant must also show it has a certain term + exclusive possession of the premises in order to establish it is a tenant, rather than licensee. In the context of business arrangements the result affects security of tenure, as business tenants (but not licensees) are protected by the Landlord and Tenant Act 1954, entitling them to remain in the premises at the end of the lease term and request a new lease. In the business context, the court tends to construe the document as a whole to see

if the landlord retains control over the property. In this setting, the courts are more prepared to accept the reality of the label 'licence' than they are in the residential context as there tends to be more equality in bargaining power, with commercial leases often negotiated and parties legally represented. However, always note that the label is not decisive. Esso Petroleum Co Ltd v Fumegrange Ltd and others The landowner still exerted a high degree of control - no exclusive possesion FACTS: Esso and Fumegrange entered into three agreements allowing Fumegrange to occupy two service stations: a partnership licence agreement to use Esso’s land and fixtures and fittings for three years; a shop franchise agreement; and a car wash agreement. The licence agreement included a provision whereby Fumegrange permitted Esso to inspect Fumegrange’s business documents and books; to inspect the premises to ensure compliance with Esso’s ‘operating standards’; to alter the layout and décor of the station; and to make further alterations and additions. When Fumegrange fell behind with its payments, Esso was granted possession of the premises. The question for the court to consider was whether exclusive possession of the service stations was granted to Fumegrange. HELD: The court held that the degree of control exercised by Esso over the premises and the way in which it was conducted was inconsistent with an exclusive right to possession of the service stations being vested in Fumegrange. Esso could make alterations on the premises; it could install a car wash (as was in fact done); and it could change the layout of the shop. This degree of physical control over the premises and conduct of the business at the service station was held to be very significant. Dresden Estates v Collinson The owner can require the user of property to move elsewhere - no exclusive possession FACTS: Dresden Estates Limited and Collinson entered into an agreement allowing Collinson to occupy a workshop and store owned by Dresden. The agreement was labelled 'Licence' and the parties referred to throughout as 'Licensor' and 'Licensee'; it was expressed to be personal to Collinson and not to constitute any tenancy. Dresden reserved the right to require Collinson to move into other premises owned by Dresden on giving notice (relocation). HELD: At first instance it was held that Collinson had a tenancy which attracted the protection of the Landlord and Tenant Act 1954. Dresden’s appeal was allowed, there was no lease on the facts, Collinson held under a licence as '...you cannot have a tenancy granting exclusive pos...