Land Law
May 2014
LLB Law with Business
LLB Law with Business – LW365 Land Law
May 2014 Examination - Marking Guidelines
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 William 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 stage at which the items were removed – whether between
William accepting Harry’s offer and exchange of contracts, or after exchange?
What are William’s contractual obligations?
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Is the arrow that William found ‘treasure’, 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 – tapestry, chandelier,
summer house and roses. 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
historic arrow falls within the meaning of ‘treasure’ under the Treasure Act 1996.
Candidates should consider liabilities for removal of fixtures and remedies for breach
of contract.
Question 2
This question encompasses the rights of the mortgagor and mortgagee and
candidates are asked to advise Ernie. Candidates should identify all relevant issues
as follows:
Date of redemption – Candidates should explain the meaning of the equitable right of
redemption. Candidates should consider the circumstances in which courts will
intervene where a mortgagee restricts the mortgagor’s equity of redemption, making
reference to appropriate case law, for example Knightsbridge Estate’s Trust Ltd v
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Byrne [1939] Ch 441, Multiservice Bookbinding Ltd v Marden [1979] Ch 84,
Fairclough v Swan Brewery Co Ltd [1912] AC 565. Has the right to redeem been
rendered illusory?
High interest rate – Consider common law rules and the Consumer Credit Act 1974
s.140A.
Collateral advantage – Consider the circumstances under which a collateral
advantage/solus tie may be valid, e.g. Kreglinger v New Patagonia Meat and Cold
Storage Co Ltd [1914] AC 25, Esso Petroleum Co Ltd v Harper’s Garage (Stourport)
Ltd [1968] AC 269).
Mortgage repossession – Consider the mortgagee’s right to possession (Four Maids
Ltd v Dudley Marshall (Properties) Ltd) and statutory protection afforded to the
mortgagor by s.36 Administration of Justice Act 1970 and s.8 Administration of
Justice Act 1973. Candidates should consider and apply the Cheltenham and
Gloucester BS v Norgan guidelines.
Candidates should conclude on the merits of Ernie’s case for postponing possession
and whether the terms in the original mortgage agreement are void as clogs,
enabling Ernie to be released from the agreement and secure alternative finance and
dairy products elsewhere.
Question 3
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 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 an equitable lease (Walsh v Lonsdale) or
periodic tenancy have been created here and appropriate notice periods.
Candidates should also consider Erica’s obligations in respect of a landlord’s implied
covenant to repair ‘installations for space heating and heating water’ under the
Landlord and Tenant Act 1985 s.11.
Liability of Jenny and Amy in respect of maintenance of the property – Implied
covenant of tenants (not licensees) not to commit ‘waste’ or to use the property in a
responsible manner. Candidates should consider whether a failure to maintain the
property constitutes a breach of these implied covenants. Consider remedies for
breach of covenant.
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Question 4
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.
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.
Alice’s will – Does this constitute an act of operating on one’s own share?
Beth’s shouting at Claire – Does this fulfil the criteria for statutory notice of
severance?
Three potential acts of severance then follow – Claire’s will, Beth’s letter and Claire’s
death - all on the same day. The order of events is important here, although the
precise order is not given in the problem. Candidates will need to consider the
alternatives.
Candidates should conclude on Alice’s position.
Question 5
This question calls for a comparison of the ‘old’ and ‘new’ law on adverse possession
from the perspective of adverse possessors. Candidates could consider the
traditional rationale for adverse possession in terms of relativity of title, moral
arguments in favour of adverse possession and, by contrast, the perceived need for
a change in the law in the Law Commission Report ‘Land Registration for the 21st
Century’.
There are several areas that candidates could address in answering this question:
Statute – Candidates should contrast the ‘old’ law with the changes introduced under
LRA 2002, which brought an end to the automatic acquisition of title by adverse
possessors on the basis of limitation. Candidates should note that different rules
apply to claims to registered and unregistered land.
Development of case law – Candidates should discuss the development of common
law principles of adverse possession through the leading cases of Buckinghamshire
CC v Moran and Pye v Graham, and other cases. Case law has established the
need for discontinuance/dispossession (Rains v Buxton, Smith v Lloyd), intention to
possess, factual possession, possession must be adverse (Moran and Pye).
Candidates could discuss whose interests the case law pre-LRA 2002 appeared to
favour.
Human rights – Candidates should discuss the cases of Beaulane Properties v
Palmer, JA Pye (Oxford) Ltd v United Kingdom and Ofulue v Bossert, which
eventually clarified that the old law on limitation was compatible with the Human
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Rights Act 1998 and Art 1 of the 1st Protocol. Contrast the decision in Pye with
Beaulane (which held that adverse possession was contrary to Art 1) but which in
light of Pye, is now confirmed to be wrongly decided. A strong answer would reflect
on the relevance of these decisions in light of changes in the law under LRA 2002,
and candidates could discuss critical commentary on adverse possession and
human rights, e.g. Dixon’s 2008 article.
Recent development – squatting in a residential building is now a criminal offence.
Candidates could consider this recent development in the law under the Legal Aid,
Sentencing and Punishment of Offenders Act 2012. Whilst it has left LRA 2002
unchanged, candidates could consider possible impacts on squatters making civil
claims under the new law and the potential for criminal prosecution.
Question 6
This question invites candidates to reflect on proposals for law reform on coownership and whether the leading cases of Stack v Dowden and Jones v Kernott
have fully met this need. 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 more recent case law.
Candidates should note the distinction between joint and sole ownership cases and
that both Stack and Jones are joint legal owner cases. Here the court was primarily
concerned with quantification of beneficial interests; whereas in sole legal owner
cases an equitable interest under express or implied resulting or constructive trust or
proprietary estoppel must first be established.
Stack and Jones - Candidates should analyse the judicial guidance on ascertaining
parties’ common intentions in Stack and Jones.
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). Does the current law
satisfactorily address establishing beneficial interests in Burns v Burns-type
scenarios of long relationships akin to marriage?
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. Candidates could
draw on critically commentary by Dixon, Mee, Pawlowski and Brown and others, and
more recent case law to consider the extent to which Stack and Jones have
successfully addressed the challenges in the absence of statutory reform.
Question 7
This question calls for a critical discussion of the Law Commission’s 2011 report
‘Making Land Work: Easements, Covenants and Profits à Prendre’. An answer to
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this question could be structured in a number of different ways, and candidates may
choose to focus on some aspects of the Commission’s recommendations in greater
depth than others. The rationale for the approach taken by candidates should be
made clear in the essay. Candidates should reflect on the need for reform in this
area of law, for example by considering the out-dated or limiting aspects of law in
this area, contemporary socio-economic context and recent reform of land
registration as a whole.
Easements – An analysis would include the need for simplification of the law on
prescription, a single statutory scheme for implied easements, recommendation that
the section 62 LPA ‘trap’ cease to operate to transform licences into easements,
reform relating to the rights to park, and the presumption of abandonment after 20
years’ non-use. Candidates could link this discussion with the Commission’s more
recent consultation on rights to light.
Profits à Prendre – Candidates could discuss the Commission’s proposal that in
future profits may only be created by express bargain, rather than by prescription or
implication.
Freehold covenants – Candidates should identify the limitations of the current law
with regard to positive covenants and the Commission’s proposals for a new land
obligation to enable positive and negative obligations to bind successors in title and
modification of s.1(2) LPA 1925. Candidates could discuss the consequent need for
reform and extension of jurisdiction of the Lands Chamber to enable discharge and
modification of positive as well as negative land obligations, as well as easements
and profits.
Land Registration – Candidates could discuss the recommendation to make it
possible to create an easement or land obligation over land held in common
ownership.
A thorough answer to this question would engage with relevant case law such as
Tulk v Moxhay, Rhone v Stephens and Wheeldon v Burrows and academic
commentary on the reforms, for example articles by Dixon, O’Connor, Sutton, Spark
and others.
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 its social context – 1970s Britain and growing awareness of women’s
and spousal rights.
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Candidates should 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, 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 occupationCandidates could consider Kingsnorth Trust v Tizard, Ferrishurst
v Wallcite, Le Foe v Le Foe, Malory Enterprises v Cheshire Homes, Link Lending Ltd
v Bustard. 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. Candidates could come to a conclusion on whether the law on overriding
interests as it now stands is ‘troublesome’.
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