LW365 Land Law
Outline Solutions – May 2015
Question 1
A complete answer to this question would address the following issues:
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Which of the items at the property form part of the land, and which are chattels that James can
freely remove from the land?
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What are the implications of the failure to discuss which items would be included in the sale;
and the contractual stage at which the items were removed? What are the parties’ contractual
obligations and potential remedies for breach?
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Are the coins that Greg found ‘treasure’? Who do they belong to and what procedures should
be followed in relation to this?
Candidates should consider the statutory definition of land and the effect of s.62(1) LPA, where
nothing is said about fixtures in the conveyance. Candidates should consider the three-stage
contractual process for sale of land and the contractual obligations of the parties with respect to the
items identified as fixtures at different stages. Candidates should distinguish fixtures from other
items, which may be freely removed by the vendor as personal chattels.
Candidates should identify and explain the key tests (degree and purpose of annexation) for
establishing whether an item forms part of the land (see for example Holland v Hodgson, Hamp v
Bygrave, Berkley v Poulett, Elitestone Ltd v Morris, Leigh v Taylor. Botham v TSB Bank plc (1997)
73 P&CR (D1))
Candidates should consider each of the items in question – fireplaces, paintings, kitchen and
sundial. Analysis could include whether the items rested on their own weight, the purpose of
attachment, whether the items enhanced the overall architectural design, damage caused in their
removal etc. Consider whether the coins fall within the meaning of ‘treasure’ under the Treasure
Act 1996.
Candidates should consider liabilities for removal of fixtures and remedies for breach of contract.
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Question 2
This problem concerns the significance of the distinction between a lease and a licence for
landlords and tenants. Candidates should explain the significance of the distinction and consider
the criteria for characteristics of a lease (Street v Mountford, Ashburn Anstalt v Arnold, Antoniades
v Villiers being key cases).
Candidates should analyse the purported licence agreements in this case. Here there are multiple
occupiers, so candidates will need to consider whether the four unities of possession, interest, title
and time are present to give rise to a joint tenancy. Candidates should consider whether the terms
which appear to prevent exclusive possession of the property are substantive or mere sham
devices. Candidates should consider the type of tenancy that may have been created here and
appropriate notice periods.
Candidates should also consider Sandra’s position as a purchaser who did not make reasonable
enquiries concerning tenants/persons in actual occupation of the property, and her obligations as a
landlord concerning the implied covenant to repair ‘installations for space heating and heating
water’ under the Landlord and Tenant Act 1985 s.11.
Candidates should consider whether a failure to maintain the property and the boiler constitutes a
breach of statutory implied covenants. Consider the rights of Josh and Pete as occupiers of the
property and whether or not Sandra can obtain vacant possession.
Question 3
This question concerns the law of severance. Candidates should identify how the property is held
from the outset – as a joint tenancy or tenancy in common in equity. A tenancy in common may be
presumed if the contributions are unequal and the property is for business purposes etc. Consider
the relationship between the parties as a family.
There are several potential acts of severance in this question. Candidates should consider which of
the methods for severing an equitable joint tenancy may be relevant – statutory notice, operating
on one’s own share, mutual agreement, course of dealing and forfeiture.
Ellie’s mortgaging her share and making a will - Does this constitute an act of operating on one’s
own share?
David moving in with his girlfriend, discussing transfer of his interest to Freddie and making a will –
Do any of these acts constitute valid acts of severance?
Ellie’s death – Freddie is still a minor at this time, but stands to inherit Ellie’s share. Candidates
should consider whether the forfeiture rule would apply, and whether Freddie would become a
trustee, or simply hold a beneficial interest.
David’s letters – Candidates should consider whether this constitutes severance by notice in
writing, s36(2) LPA 1925, s. 196 LPA 1925, Re: Drapers Conveyance [1969], Re 88 Berkeley Road
NW9 [1971], Kinch v Bullard [1999]. All intended recipients need not see the notice for it to be
effective as long as it has been delivered.
Candidates should advise David on the extent of his share in the business and his desire to sell.
Discuss an application to the court under s.14 TOLATA 1996, and the s.15 TOLATA 1996 criteria:
the intention of the persons who created the trust; the purpose for which the property is held; have
regard to the circumstances and wishes of the beneficiaries or the majority of them.
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Question 4
The central issue here is whether Oliver, Annie and Donald have easements and profits a prendre,
or merely licences in respect of:
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The access road across Donald’s land
Annie’s rights to collect wild fruits from Oliver’s estate
Donald’s pub sign
Parking on the estate
Easements and profits are enforceable whereas licences are terminable at will.
Candidates should distinguish between easements and profits and identify the essential
characteristics of each (Re Ellenborough Park). Consider whether anything else prevents the rights
from being capable of being easements. Profits a prendre are the right to take something from the
land (here, wild fruits).
Candidates should consider how the potential easements and profits have been created and
distinguish between the grant and reservation of easements – the right of way over the access
road could be an implied reservation through necessity or common intention (Re Webb’s Lease,
Peckham v Ellison). As an oral agreement the right to collect wild fruits was not granted expressly,
but could have been implied under LPA s.62 when the land was conveyed to Annie.
Particular points regarding the sign and parking would include whether placing the pub sign at the
entrance to the estate actually accommodates the dominant land or rather just the business of the
dominant land owner – analyse and apply Hill v Tupper and Moody v Steggles. Consider whether
the right to park in one of two parking spaces amounts to too extensive a use (Copeland v
Greenhalf, Hair v Gillman, Batchelor v Marlow, Wright v Macadam). Does an oral grant fulfil the
requirements for the creation of express legal easements under s.52(1) LPA (creation by deed and
completion by registration) or an equitable easement (s.2 LP(MP)A 1989 agreement in writing)?
Consider whether they were implied through necessity, common intention or rule in Wheeldon v
Burrows, or whether they were converted from licences into easements by operation of s.62 LPA
(International Tea Stores v Hobbes, Wright v Macadam). S.62 easements by implication do not
have to be completed by registration and can override (s.27(7) and Sch 3 LRA).
Upon determining which of the rights claimed are easements and profits consider Oliver’s position.
Implied legal easements are overriding unless and until registered. Such easements are binding on
the purchaser of the servient land subject to sch 3 para 3 exceptions. Candidates should consider
how these provisions would apply to each of the parties in this problem and advise Oliver
accordingly.
Consider the remedies that Oliver, Donald and Annie may each seek for the enforceable
easements and profits.
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Question 5
The quotation in this question represents the modern approach to proprietary estoppel established
in Taylors Fashions, and subsequently applied in more recent case law.
Candidates should discuss the essential elements of proprietary estoppel and the rationale behind
the doctrine. Candidates could link this to the fact that s.2 LP(MP)A is silent on the question of
proprietary estoppel (in contrast to preserving the equitable remedies of constructive and resulting
trusts). Candidates could consider the development of the doctrine from cases such as Wilmot v
Barber, Crabb v Arun, Greasley v Cooke, Taylors Fashions, Coombes v Smith and Gillet v Holt.
Candidates would be expected to discuss the important case of Yaxley v Gotts and the current
leading case of Thorner v Major:
Unconscionability has been a critical feature of the development of the doctrine of estoppel.
Candidates may contrast the approach of the courts in the application of the doctrine as compared
with constructive trusts; the significance of the relationship between the parties (commercial or
family), bargaining power and the various contexts in which a plea to proprietary estoppel has been
made successfully or unsuccessfully. Candidates may contrast the approach of the court in
Thorner v Major with Yeoman’s Row Management Ltd v Cobbe. Candidates could also consider
the recent application of the doctrine to the cohabitation case of Southwell v Blackburn.
Candidates could consider the different approaches to remedies in proprietary estoppel claims as
compared with constructive trusts. With proprietary estoppel, the court will reward the appropriate
remedy to satisfy the equity. The remedy should achieve ‘the minimum equity to do justice to the
plaintiff’ – Crabb v Arun District Council. The court has wide discretion and will not necessarily
award a proprietary interest (cf. constructive trusts).
Question 6
This question invites candidates to reflect on the leading case of Stack v Dowden and subsequent
case law (Jones v Kernott being another leading case that candidates will be familiar with).
Candidates could contextualise these decisions in social change - in particular the increase in
unmarried cohabitation, the lack of a statutory scheme for ascertaining and quantifying beneficial
interests of unmarried cohabitees, the failure to record beneficial interests on TR1 forms, and the
confusion and apparent injustice that this has generated in cohabitation claims.
Candidates should consider joint and sole ownership cases. Both Stack and Jones are joint legal
owner cases. While they have not overruled the earlier decision in Lloyd’s Bank v Rosset for sole
legal owner cases, they have proved important in more recent case law on sole legal ownership.
Candidates should identify that the issues in these cases concern quantification of beneficial
interests; or the establishment of a beneficial interest under express or implied resulting or
constructive trust or proprietary estoppel.
Stack and Jones - Candidates should analyse the judicial guidance on ascertaining parties’
common intentions in Stack and Jones. Candidates could contrast the approaches of Baroness
Hale and Lord Neuberger in Stack (as explored in the module) and whether Baroness Hale’s list of
factors in paragraph 69 of her judgment have brought clarity or uncertainty in contrast to Lord
Neuberger’s resulting trust approach.
Sole legal owner cases - candidates could discuss the development of case law and the present
position on the nature of contributions that are required for the establishment of a beneficial
interest (Pettitt v Pettitt, Gissing v Gissing, Burns v Burns, Lloyd’s Bank v Rosset and Le Foe v Le
Foe). Has current law satisfactorily addressed the apparent injustice for cohabitants in Burns v
Burns-type scenarios of long relationships akin to marriage?
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Candidates could discuss the work of the Law Commission in Sharing Homes and Cohabitation:
The Financial Consequences of Relationship Breakdown, whose recommendations have not been
taken forward through legislation, and whether case law has satisfactorily filled the gap.
Candidates could draw on critically commentary by Dixon, Mee, Pawlowski and Brown and others.
Question 7
The question deals with undue influence in mortgage transactions and the need to strike a balance
between the potentially competing interests of banks and private individuals. Candidates should
discuss the leading case of Royal Bank of Scotland v Etridge No 2. The more comprehensive
answers would also discuss the development of case law pre- and post-Etridge. The issue may be
contextualised in the growth of home ownership since the 1980s, the deregulation of banking and a
climate of entrepreneurship. Legal problems arise where spouses grant surety over their home to
their spouse’s business.
Candidates should discuss the general guidelines that Etridge established for banks and solicitors
in an attempt to address the problem of undue influence in mortgage transactions. A key issue was
whether the bank had taken sufficient steps to avoid being fixed with constructive notice of any
undue influence by (often) the husband.
Candidates could contextualise Etridge in the cases that preceded it, and the number of cases
brought by wives in particular, notably Barclays Bank v O’Brien, Bank of Credit and Commerce
International SA v Aboody. Candidates should discuss the duty of the lender and development of
the doctrine of notice as the fundamental basis for imputing the lender with liability for the debtor’s
wrongdoing. Candidates should highlight key aspects of Etridge where the law was clarified, for
example the presumption of undue influence. Post-Etridge the presumption of undue influence is
now raised in any case where the complainant placed trust and confidence in the other party and
the transaction ‘calls for an explanation’ (applying Allcard v Skinner).
The question asks for critical discussion and candidates could consider the extent to which the
clarification of the law in Etridge has shifted the balance in favour of banks or individuals. Etridge
has been seen on the one hand as a victory for wives, and on the other for banks, in shifting the
burden of responsibility to the solicitor. Candidates may refer to a survey of decisions post-Etridge
by Mujih.
Candidates could engage with feminist critical commentary on Etridge. For example, Alison Diduck
and Rosemary Auchmuty point to an apparent failure by the House of Lords in Etridge to engage
with the realities of marital relationships and the intangible, personal importance of the family
home, as opposed to its commercial value. Auchmuty also questions the judicial reasoning which
found the presumption of undue influence rebutted in Mrs Etridge’s appeal notwithstanding the
actions of the husband, bank and solicitor in the case.
Candidates should come to a reasoned conclusion reflecting on these or other critiques.
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Question 8
This question invites candidates to critically discuss the major exception to the mirror principle of
land registration – overriding interests – and the consequences and uncertainty this has generated
for purchasers (and mortgagees) of land, who may be bound by them notwithstanding their
unregistered status. Candidates should reflect on historical developments and developments in the
case law, in particular the significance of the CA and HL decision in Williams & Glyn’s Bank v
Boland, which recognised that actual occupation of the home by a spouse with an equitable
interest upgraded an unprotected right into an overriding one. Candidates may contextualise this
decision in 1970s Britain and growing awareness of women’s and spousal rights.
Candidates could discuss the balancing exercise that statute in this area – both LRA 1925 and
LRA 2002 - has attempted to address and the rationale behind this exception to the mirror
principle. Candidates should analyse developments in statute on overriding interests of persons in
actual occupation, from the ‘old law’ overriding interests under s.70(1) LRA 1925 to Schedules 1
and 3 LRA 2002 –‘unregistered interests that override’.
The question asks candidates to specifically consider the interests of persons in actual occupation
of the land – the second category of unregistered interests in both schedules of the LRA 2002.
Candidates could include in their answer a discussion of cases pre- and post-LRA 2002 on the
nature of rights that qualify as overriding interests and the problems that purchasers (and
mortgagees) have experienced (Williams & Glyn’s Bank v Boland, National Provincial Bank v
Ainsworth and City of London Building Society v Flegg); and the development of case law on
actual occupation (Hodgson v Marks, Hoggett v Hoggett, Chhokar v Chhokar, Abbey National v
Cann, Stockholm Finance Ltd v Garden Holdings Ltd, Thompson v Foy, Link Lending Ltd v
Bustard, Thomas v Clydesdale Bank Plc).
Candidates should note the onus that Schedule 3 places on purchasers and persons in actual
occupation. Candidates could consider Kingsnorth Trust v Tizard, Ferrishurst v Wallcite, Le Foe v
Le Foe, Malory Enterprises v Cheshire Homes, Link Lending Ltd v Hussein. Candidates might
contrast s.70(1)(g) LRA 1925 with Sch 3 para 2(b) LRA 2002, which provides greater protection for
occupiers who fail to disclose their interest if, in the circumstances, they could not have been
reasonably expected to do so. Recent articles by Bogusz may assist candidates in this analysis.
Candidates could also discuss how LRA 2002 has simplified matters in respect of allowing notices
and restrictions to be entered on the register. Purchasers could overreach overriding interests by
payment of the purchase price to two or more trustees.
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