Property Law Lecture Notes

Lecture Sum./Imp Note Supp. Notes

Mortgages Mortgage – transaction under which land or chattels given security for payment of
debt or discharge of some obligation
- Santley v Wilde (1899) Lindley LJ
APR (Annual Percentage Rate)
- Personal loans: APR about 8-10%
- Loan of 25,00 (pounds) over 5 yrs: pay back total of 31,500 (pounds)
Very few personal loans for the 25 000 (pounds) – no guarantee that the borrower will
be able to be repay
- Amount that can be borrowed is based an income of applicant’ s and value of
the house
Mortgages are cheaper
- Personal loan= unsecured loan (no guarantee because it not attached to
property)
- Mortgage = secured loan is bought on a house t/f secured – lender receives a
LEGAL interest on the house
Borrower= Mortgagor (remains legal owner)
- Rights are called equity of redemption (incl. right to redeem the mortgage)
Lender (bank/building society)= mortgagee (obtains legal interest)
- Must be registered at land registry under (s.27 LRA 2002)
Equitable Interest- each party’s share in the value of the property
- 100% of mortgage bank will own all| 90% of mortgage, mortgagor will own
10%
Loan to value ratio/Percentage: the percentage (of the property’s value) lent by the
lender

Repaying mortgage
Simple Repayment mortgage
- made to repay the amount borrowed plus interest (usually over a 25 year term
the mortgage is repaid)
Interest Only mortgage
- monthly payments to cover interest of the loan | borrower invested elsewhere
to raise money to repay the mortgage
Changes During Mortgage term
- House price rise-parties/borrowers will own greater share of the value
- Price Fall- own smaller share of the value
- Decide to sell- need to repay the mortgage from sale proceeds (can keep
money left over)
- If they were to fall into arrears(problems) amount owe will increase interest is
payable and lender’s interest in value will increase due to lender on sale
- Can see the house to repay the loan

Creation of Mortgage

- Lenders’ interest must be a registrable disposition under s 27 (2)(f) LRA 2002-

 Registrable disposition
Mortgage deed
- always states repayment date (contractual redemption date) usually 1-6
months after the date of creation of the mortgage
- Cannot redeem (pay of in full) before this date
- Mortgagee cannot seek full repayment before this date
- After date has continuing right to redeem unless and until the whole of equity
of redemption is extinguished
o Can be extinguished by the mortgagee exercising its powers (power of
sale)
Remedies of Mortgage
- Personal remedy of suing on the covenant to repay
o Contract bet. Mortgagor and mortgagee (loan of money- promise to
repay)
- Foreclosure s 88(2) LPA 1925
o RARE
o One last opportunity to repay debt if not paid passes to the
mortgagee(becomes legal owner) – mortgagor can request the court
order a sale of the property instead (s.91 LPA 1925)
- Power of Sale
o Most common of remedies (M’gee)
o Sells property and use proceeds to pay debt- surplus (money left over)
go to borrower- loses home and debt may not be fully repaid if the
house prices have dropped
- Possession
o M’gee’s right to take possession – exercised if there is a refusal to
leave property (M’tgor)- not necessary to obtain a court order under
s.36 AJA 1970
o HRA complaint- Horsman Properties ’08- major lender will not seek
possession of MAIN home w/o a court order
- Appointing a receiver
o Power arises after mortgage money becomes due (redemption date)
o Exercisable in the same circumstance of power of sale
o Used for tenanted properties
o Receiver admins the property
o Rental payments used to repay the mortgage

Power of sale (S 101 LPA 1925) – Requirements

- No contrary Intention &
- Made by deed &
- Mortgage money is due (date of redemption has passed)
- ** Must be satisfied for power of sale to arise)
^When can the mortgagee sell in POS?
- Must be exercisable (s.103 LPA 1925) ONE these conditions must be satisfied
o Served notice on mortgagor requiring payment of the mortgage
money and mortgagor has defaulted for 3 months OR
o Some interest is a least 2 months in arrears OR
 o Breach of some other provision of the mortgage
Buying from Mortgagee
- Still the registered proprietor
- To get a good title for M’gee must check that power of sale has arisen and
purchaser does not need to enquire into arrears (whether pos has become
exercisable)
Exercising POS
*M’gee’s duties
- Not obliged to act in best interest of M’gtor
- General duties: Take reasonable care (obj) | Act in good faith (Subj)- S105
o Cuckmere Brick v Mutual Finance (1971)
Good Faith
- M’gee not act willfully and recklessly (Kennedy v Trafford(1897))
- Incl. fraud, shams, corruption and collusion w/ purchaser
- However does not M’gor from sale that are disadvantageous to them

Reasonable Care
- Not act carelessly or imprudently in the sale
- M’gee is under equitable duty to try to obtain true market value- Silven
Properties Ltd v RBS Plc
- Decided on a case by case basis – Meftah v Lloyds Bank TSB ‘01
Owed the duties? Remedies for breach of
- Parker- Tweedale v Dunbar Bank Plc ’91 DOC; include
- To ..the M’gtor |guarantor of the M’gtor | other m’gees
- NOT to a beneficiary under a trust where m’ gtor is a trustee
- Remedy for breach is an order for account (SIlven properties Ltd v Royal bank
of Scotland
Price of Sale
- M’gee is NOT under a duty to obtain best price or true market vale (only to try
to obtain the best price and take proper care of the sale)
- Must describe property accurately (Cukmere/ Silven)
- No requirement to improve the property (Silven)
Mode of Sale
- Can choose method
- IF by auction – must be properly advertised and conducted ( Predeth v Castle
Phillips ’86- Struggles v Lloyds TSB ’00- Bishop v Blake ’06)
- Desirable to appoint experts (valuers, auctioneers) but DOC is non-delegable
(Raja v Austin Grey ’02)
Time of Sale
- M’gee can choose time (Cuckmere)
- No Obligation to wait for rising/recovered market (Bank of Cyprus v Gill) BUT
must not sell at worse possible time (acting in good faith) lord denning in
Standard Bank v Walker (obiter)
- Not followed in later case: China v South Sea Bank v Tan PC & Silven v RBS
Who can M’gee sell to?
- Void if it is a sale to SELF OR AGENT,
- RELATED person (voidable)- Tse Kwnong Lam v Wong Chit Sen 1983- burden
of proof on the m’gee to show reasonable steps wee taken to obtain the best
 price reasonably obtainable

Application of Proceeds of Sale (S.105 LPA 1925)

- M’gee is a trustee of the proceeds of sale
- Order of application of proceeds: discharge of prior
incumbrances-cost/expenses of the M’gee- payment of the mortgage- residue
to the person entitled to the mortgages property (M’tgor or M’gee)
More than one on Mortgages
- S 104 1925 – sale made subj. to prior mortgages but free subsequent ones
- 1st M’gee can sell w/o notifying late M’gees (surplus sales to them s 105)
- Subsequent M’gee should get consent from prior M’gees before sale
- Ex: if there are 3 Mortgages – Mg2 can sell free from Mg3 but subject to Mg1
(s 104) Mg2 must pay Mg1 before repaying Mg2 (s 105)
Ex: Cont’d
- Payment of Mg1 -100k – Payment of fees – Residue to reside to repay Mg2
60k- Mg3 may receive nothing
Mortgage’s - t/f only likely to exercise of sale if property is worth than 170k
Pt.2
Mortgagor Objects to the way in which POS of sale is exercised by the Mortgagee
S.91 (2) LPA 1925
- court can order sale at the request of the M’gee or M’tgor- notwithstanding
that any other person dissents
Mortgagee is delaying POS impacts:
- Arrears will be increasing
- Interest will be added to total sum owed by M’gtor
- Palk v Mortgage service funding plc (1993)
o Negative equity on the property of 75k
o Mortgagor requested the court to order a sale of property
o CA held that the M’gees were unreasonably delaying sale
o Approved in Barret v Halifax BS (1955)
o Polonski v Llyods Bank Mortgages Ltd (1997) – wanted to sell for social
reasons – Negative equity of 12K – took social reasons into account
and ordered sale
If M’gtor Objects to sale
- M’gee can obtain an order for possession – S. 36 Admin of Justice Act 1970
- Court can suspend, postpone or adjourn a mortgagee’s application for
possession if the M’gtor is likely to repay arrears w/n a reasonable period
- Applies to dwelling house
S.36 AJA- Application
- Court unlikely to delay possession where there is little likelihood of ability to
repay arrears – First National Bank plc v Syed ’91 | Bristol & West plc Dace ’98
- Can use it to allow M’tgor to sell privately – will pay off mortgage and arrears –
Target Home Loans v Clothier ‘94
National & Provincial BS v Lloyd ’96 – possession can be suspended pending a sale
– if there is evidence that sale can be completed w/n a reasonable period(decided
w/ each case)
Cheltenham & Gloucester Bs v Norgan ’96- courts will look at whole mortgage
 term to assess reasonable period
- Reason for arrears
- How much borrower can afford to pay
- How much remained of the mortgage term
- Duration of teFmp. repayment difficulties
Limitations of S. 36 AJA 1970
- M’gee can take possession w/o need for court order (Ropiagealach v Barclays
plc 2000)
- t/f no opportunity for the M’gtor to use s 36 AJA 1970 (Horsham Properties v
Clark 2008)
- Possession w/o a court order needs to be peaceable- only really possible if
M’gtor is not in occupation – possible for tenanted properties
Horsham Properties Group v Clark (’08)
- M’gee sold property in exercise of the power of sale
- Sale by m’gee destroys all of the m’tgor rights (equity of redemption)
Further developments
- Voluntary agreement by major lender to not seek possession of the borrower’s
main home w/o court order
- Pre-action protocol for possession claims based on mortgage or home
purchase plan arrears (for possession claims bases on residential property)
- Mortgage repossessions (protection of tenants) act 2010 (court may defer
possession for 2 months of tenanted properties)
Possession & Human rights
- Art.1 peaceful enjoyment of property & Art.8 right to respect private family life
and the home( McDonald v McDonald ’16 | FJM v UK 2018 ECHR| Housing
crisis)

Mortgage Scenarios
- M’tgor creates M to secure loan used to buy property- transfer to the buyer/
M’tgor and the mortgage are simultaneous
- M’tgor mortgages property already owned (e.g fund improvements or for
purposes unconnected with the mortgaged property)

Mortgages and undue Influence

- Successful claims of Undue influence will allow for the mortgage contract to be
set aside as being tainted by undue influence- leaving lender unprotected

Was there undue Influence?

Actual
- Where undue influence is shown to have occurred
Presumed
- Due to a relationship of trust an confidence it is presumed to have occurred
- Leaving the party seeking to enforce the contract to show otherwise
Did the lender have notice of undue influence
- Yes? Did they take steps to ensure that the signature of the party claiming UI
properly was properly obtained – mortgage is liable to set aside (as regards to
the injured party)
Leading case: RBS Plc v. Etridge (no.2) ’02 as per Lord Nicholls
 Two Considerations:
- (1) WHEN is lender put on NOTICE that has or may have occurred
o Has notice of undue influence whenever relation. Bet debtor & joint
M’gtor is non-commercial (typical spouse scenario)
- (2) IF lender is put on notice what must it do to prevent a subsequent claim by
an innocent joint M’gtor
o Furthest a bank is expected to go is take reasonable steps to satisfy
that wife has had brought home to her reasonable and practical
implications (that they have released for example potential loss of
home)
Bank will have been deemed to have taken these steps if:
- It tells joint M’tgor that it requires them to consult solicitor of their choice
- Gives solicitor necessary financial info. to allow proper advice (if debtor does
not authorise lender to do so transaction cannot proceed)
- Obtains written confirmation that solicitor that the practical implications of the
arrangements have been explained to them
o Solicitor must be the unbiased advise and nor is not acting in the best
interest of the other party or their business (roger smith property law
p.587)
o Duty is to advise not to decide whether the wife should enter into the
transaction by refusing advice (Lord Nicholls in Etridge)

H2 Easement Easement- enjoy rights of the property owner by another

Law commission making Land work: Easements covenants and profits (2011)
- Positive Easement- involves landowner going to do something (right of way)
- Negative Easement- receive something from and w/o obstruction or
interference (light or support)
- Dominant Tenement -confers a benefit on land
- Servient Tenement- imposes a burden on land
^^Law comm – review of areas of land law w/ proposal for reform – effect to law
commission’s recommendation- assist interpreting legislation (Pepper v Hart)
Easements
- Created w/ proper formalities can be legal interests (deed s52 ‘25, registrable
dispositions S27(2)(d) LRA - on title register, equivalent duration to fee simple
in absolute possession or term of yrs absolute S1(2)a ‘25)
Easement Examples
- Right of.. drainage| lay pipes| use bin| storage| light | support|use of lavatory
| to affix an advertising hoarding | right to use a swimming pool
Profit a Pendre
- Take – offer the right to enter and take something which is naturally there
(crops, timber, fish, animals, fruit)
- No need for dominant tenement as profit can exist in gross
- S(1)(2)(a) ‘25

Elements of an Easement - Ellenborough park 1956

- 1) must be dominant & servient tenement
 o A right attached to one piece of land, dom. Allows use lands to
servient
- 2) easement must accommodate (benefit) the dominant tenement (distinct
from the owner)
o i.e advertising sign- would accommodate the dom if per se it was their
own business (Moody v Steggles 1879- pub | Clapman v Edwards –
general advertising sign)
o not an easement is it a licence- a personal right not capable of being a
legal interest (C v E)
o if legal interest it is enforceable against it successors
o Hiller v Tupper- 1863- canalside not accommodated – not an existing
business t/f it was not currently benefiting (P&S Ltd. V Crouch
o Accom test- does it make DT more convenient tenement
- 3) the dominant and servient tenement owned by different persons
o Same ownership is a ‘quasi- easement
o If owner sells may be come full easement
- 4) Easement must be capable of being granted
o A) is there capable grantor- i.e stream not owned by anyone- Sweet v
Sommer ’04- holder of legal estate (ST) can grant easement over it
o B) is there a capable grantee- someone’s land will be accommodated
(must own land)
o C) Certainty description- clearly described and defined – Webb v Bird
(no right to general air flow) Cable v Bryant- air through ventilating
duct – right to roam and wander cannot be an easement- recreational
purpose (unclear if it is an easement)- must specify: Re: Ellenborough
Park-use as garden |Regency villas title Ltd an others v Diamond
resorts
o D) is it a right recognised as being able to exist as an easement –
general light an air flow cannot be an easement- but right to light to
window or skylight can(Colls v home and colonial stores), also no
natural right to a view (Phipps v Pears| Farene v Tate Gallery )|
Storage cases (Newman v Jones)
- Exclusive/shared occupation cannot be claimed as an easement (Copeland v
Greenhalf 1952 | Grisby v Melville)
- Cases: Contrast Wright v Macadam | Batchelor v Marlow |Mancrieff &
Jamieson
- Modern test: An Easement must not substantially interfere w/ the use of the
ST as a whole (Batchelor v Marlow) – IF it does it is considered a tenancy or
licence
- Right of support- i.e flat above can have easement of support from flats below
and vice versa right of shelter – granted in leases – Dalton v Angus | Phipps v
Pears
- General principle is- cannot claim easement for land owner to incur expense
and positive action (t/f no easement) – right could exist as the benefit of a
positive covenant – doesn’t run w/ land
- Cases: Walled- crow v wood , jones v price | Adjoining owners – Lawrence v
Jenkins | spurious easement – Churston golf club ltd v Haddock
 New Easements
- Recognised by courts (positive not negative) Positive recognition: Coventry v
Lawrence |no negative recognition: Phipps v pears- no right of support
- Law commission view is that this should be reverse for rights of support
- Hunter v Canary wharf- no right to receive broadcast signals
H3 Easements
Creation and acquirement:
- (1) By grant
o Express
o Implied
o Presumed
- (2) By Statute
o Must grant easement to DT
o Formalities: deed s52 LPA 1925

Reservation of easements
- Express reservation by deed: part of prop. Being transferred but owner needs
an easement over sale property for benefit being kept (as opposed to a grant)
- DT transfers to ST except reserving DT and successors a right of way
- T/f reservation is technically a grant of an easement by the buyer to the seller
- *Can be reserved when sold to servient tenement making them the dominant
tenement- building a house that would block original path would transfer so
they could reserve a right of way
S62 LPA 1925
- Word saving provision -creates easements inadvertently- when said through
conveyance (even though the document does not say anything)
- Conveyance of land shall be deemed to include all easements appertaining to
land – grant of lease is a conveyance (s.205 LPA)
- Transferred w/o express easement s62 operate as if the easement were
expressed in grant
S62 Requirements – for the word saving to operate
- 1) Must be conveyance (transfer of legal estate- S205 LPA 1925 includes- lease)
- 2) right must appertain to land (exercised at the time of conveyance)
- 3) Must be prior conveyance, have been some diversity of ownership and
occupation (Somvmots investments v secretary| Payne v Inwood |wood
&anor v Waddington 2015)
- 4) applies to rights which are known to law (capable of existing as easements-
ellenbrough
- 5) NOT apply if there is any contrary intention expressed in deed – lawyers will
usually put ‘only rights discussed here will pertain’

Implied easements in deeds

- Principle of non-derogation from the grant – a grantor must not grant land to
another which negates the utility of the grant
- Where land ownership is physically divided by a transfer part of another
o A) Easements of necessity
o B) easement intended to be granted
 o C) Ancillary easements
o D) by operation of the rule in Wheldon v Burrows
- Quasi-easement – capable of becoming full easement if not granted it may be
impliedly granted
Easement of necessity
- Quasi easement will become and easement if w/o it property is UNUSABLE
(only way to get to property is through the other)

Intended to be granted
- Grant must have been intended (no requirement for express)- Wong v
Beaumount Trust | Dononvan v Rana
- **easements of necessity aren’t a form of intended easements -Stafford v lee
Ancillary Easements
- Right to use waste bin implies right of way to and from waste bin Pwllbach
colliery v Woodman 1915| Gosling v Bradbury (in order to the main easement
you need this easement)
Rule in Wheeldon v Burrows
- When there is a sale of part- new owner will acquire easements if they are-
automatically transferred to new purchaser BUT must:
- 1) continuous and apparent
- 2)Necessary for the reasonable enjoyment of the land transferred
- 3) had been used by the transferor for the benefit of part transferred

Quasi easements & S.62 LPA

H4 Easements - Diversity of ownership is required for s62 followed in : Long v Gowlett 1923 |
Somvmits Investment s Ltd v Secretary of state for the environment 1979 |
Kent v Kavanagh 2007
- Movement towards quasi- easement becoming easements under s.62
introduced in Platt v Crouch
- Wood v Waddington reaffirmed^^ that as long as there is a continuous and
apparent right (no need for diversity of ownership)

Presumed Grant of Easements by deed

- In some circum. Easement will be presumed to have been granted by deed
even if:
o Deed cannot be produced.
o Even if there is no evidence that there ever was such a deed
- Presumed grant is a result of:
o Common law prescription
o Doctrine of the Lost Modern Grant
o Prescription Act 1832

Common Law prescription

- Right capable of being an easement has been exercised since “time
immemorial” (before 1189 AD)
- If the right has been exercised for 20 years it will presumed that it has been
exercised since time immemorial
 Exercising the “as of right”
- Must have had right for 20 years
- w/o exercising physical force -(Nec Vi)
- Openly (not secretly) – (Nec Clam)
- w/o permission of the ST- (Nec Precario)

W/o force: Nec Vi

- Newnham v Williamson 1987- removal of barriers by DT=force
- Winterburn v Burnett 2016- continue use by DT when there was a sign was
equates to force

W/o secrecy: Nec clam

- Enjoyment has been open that a diligent land owner would become a aware of
that enjoyment (per romer LJ in union lighterage Co. v London Graving )
- Liverpool corporation v H Coghill & Son Ltd 1918- Waste discharged at night

W/o permission : Nec Precario

- Acquiescence or tolerance of right by ST does not constitute “permission”-
decided in Mills v silver 1991
- Fine line between tolerating and permitting (R (Beresford v Sutherland CC
2004)
20 Years continuous use
- A question of fact and degree
- Dimet v Foot – foot path used not more than 10 times in 30 years – could be
classified as continuous
- Hollins v Verney 1884 – only exercised on 3 occasion by gaps of 12 years – not
continuous
- Ester v Withers 1975- right of way only used in summer access closed to
claimant in winter – continuous
Presumption can be rebutted
- On evidence that DT and St had at some time(after 1189) owned by one
person ‘unity of possession’ must be two separate owners – Loveluck- Edwards
H5 easements v Ideal developments (2012)

Solution to Loss of modern grant

- Some time after 1189 deed lost
- Dalton v angus applied in tehidy minerals v Norman 1971
- Subsequent cases: bridle v Ruby, simmons v Dobson etc
- Illogical legal fiction – presumption cannot be rebutted w/ evidence that no
grant was ever made

Prescription Act 1832

- Purpose- to avoid reliance on common law prescription and the fiction of the
lost modern grant
- No provision to abolish either
- PA 1832
o Very complex |badly drafted
 o Creates different time period over which right must be exercised to
claim legal interest
- S.1 for profits – short period- 30 yrs | long period- 60 yrs
- S.2 for easements other than light SP- 20 yrs| LP- 40 yrs
- S.3- for rights for light- only one period- 20 years

Section 4- next before action

- Period of use must have been next before action meaning claimant must
uninterrupted exercise of 20/30 years imm. Prior to litigation
- Not required in common law prescription or lost modern Grant
Section 4- W/o interruption
- Valid interruption continuing for 12 months – non-user will not constitute as
an interruption
- Needs and act by servient owner to show objection to use

Interruption
- Not valid unless DT submitted or acquiesced to it for 12 months after
becoming aware
- On DT to show no acquiescence in ST’s attempt to interrupt and ST knows they
were not acquiescing
- Simply communicating objection might be sufficient – Bennison v Cartwright
1864
- unity of possession amounts to an interruption
- anything that fails to meet the 20 years before litigation will not amount –
Reilly v Orange 1955
- evidence that ST gave oral permission will not defeat claim BUT evidence of
written permission will defeat under PA 1832

S.3 PA 1832- Easements of light

- Treated diff- no short/long period – ONE period of 20 yrs
- No need for DT to show enjoyed benefit of light
- Only need to show use of light w/o written permission
- Period of unity of possession of ST and DT will not be an interruption

Extinguishing Easements
Can be extinguished by:
- Statute (rare)
- Express release (by deed)
- Written release with consideration (no deed, equitable release)
- Oral release (may bind in equity if ST acts in reliance |estoppel i.e DT gives oral
permission)

Implied release – not using easement for long time

- Only when DT shows intention to abandon
- Owner of ST must show at least 20 years nonuser
- However courts are reluctant to infer intention to abandon ( CDC2020 plc v
Ferreira 2005 | Williams v Sandy Lane | Benn v Hardinge-175 years of non-use)
Unity of Ownership
- DT and ST w/ single ownership
- Easement is suspended but not extinguished
- UOO & possession does not extinguish easement of light

Protection of Easements and profit in registered Land

Expressly granted legal easements and profits
- RD- must be registered to take effect in law (s.27(2)(d) LRA 2002
- Entry in property register of dominant land- included in discrip. of property t
benefits
- Entry in chargers register of SL to ensure it binds

Other non- express legal easements and profits

- Acquired by s.62 LPA 1925, Wheeldon v Burrows, Prescription
- Not a RD (no req. to take effect in law)
- But interests that override under schedule 3 Paragraph 3 – bind purchaser
despite not being on title register

Sch. 3 Paragraph 3 LRA 2002

- Interest overrides if:
- Purchaser knows of it OR
- It is obvious on reasonably careful inspection of SL such that no seller would be
obliged to disclose OR
- Person entitled to easement or profit proves it has been exercised w/n the
period of one year before disposition/ transfer to purchaser

Land Registry req. anyone applying to register provide info. About any interest they
know of that may be an interest that overrides (Rule 28 &57 Land Regis. Rules 2003)
- Crim off. If do not declare
LR has power to enter notice of or any interest that would otherwise be an overriding
interest
- When registered interest ceases to override
- Overall aim to move toward a more comprehensive register

Question of law? Is reform needed?

- Acquisition of easement w/ no express deed is very complex – so many

- S.62 can lead to accidental grant (usually expressly excluded)
- 3 types of prescription and a bit archaic (1189 AD)
- Difficult to establish diversity of ownership at times
- Overlap of s.62 & W v B
Draft of property bill by law commission – aim to create clear law of easements.
profits/covenants to ensure consistency
- Proposals for reform – registered land could create easement of own land –
abolish easement creating effect of s.62 – combine all methods (for implied)
only one- clause 24 car parking easements
Clause 20- one method
- Easement will impliedly created where necessary and reasonable use of the
 land , i.e:
o Use determined at time of grant
o Physical features
o Intended future use known to both parties
o Available routes for the easement?
o How much interference would be cause to SL/owner?
- enable grant or reservation of easement (same rules apply to both grant and
reservation | subj. to contrary intention)
Clause 16-18- easement arises on completion of 20 years of qualifying use (use current
case law as there is not stat. def. of continuous)
- qualifying use must be w/o force, stealth permission (nec vi. Nec clam, nec
parecario) | different as there is no req of ‘ next before action’

Abandonment of easements
- Benn v Hardinge- currently difficult to establish
- Proposal: rebuttable presumption of abandonment of 20 years of continuous
non-use – subject to contrary evidence
J1- Intro to Covenants
Freehold - Promise to do or not something on your land
Covenants: - Equitable interest (S.193) LPA)
- Contained in a deed
Covenanter- person making the promise (bound by covenant)
Covenantee- person receiving the promise (benefit of the covenant)- can
enforce
- w/ covenants privity of contract exists bet. OG parties
Examples- restrict building-restrict use of land- maintain fences- contribute
cost of maintaining shared facilities etc
- OG cov’tor can be sued even after selling land (by OG cov’tee)
- Burden and benefit becomes attached to land (at comm law and equity)
J2a Freehold Benefit running rules
Cov. Passing At common law benefit runs if:
the Benefit - (1)Covenant touches and concerns the land
o Not for the cov’tee’s personal benefit
- (2) OG parties intended the covenant to run w/ the land
o Express wording- i.e successors in title, so as to benefit the land
(wording implied by s.78 LPA 1925)
- (3) cov’tee owned the legal estate in the benefitting land when covenant was
made
o Not equitable estate in the land
- (4) person enforcing the covenant has the same legal estate as the covenant
o i.e have bought freehold or leasehold estate
Benefit running rules – in equity
- touches and concerns land (same meaning as comm. law )
- transmitted by either (Annexation- express/implied | Assignment| Building
Scheme- Renals v Cowlishaw 1878)

Transmission of benefit by express Annexation

 - Deed Creation cov. Clearly- identifies land benefitted – states that the cov. Is
for the benefitted land
- Re Ballard Conveyance 1937- for benefit of ‘whole or any part’
- Bath Rugby Ltd v Greenwood & Ors v Bath Recreation Ltd – ‘adjoining land or
neighbourhood’ is not sufficient

S.78 Law of property act 1925

- automatically implying annexation (method of implication)
- Subsection 1- states successors in title deemed to include owner’s and
occupiers for the time being of land of cov’tee intended to be benefited

Transmission by Automatic Annexation

- S.78 auto. annexes benefit post-1925 cov. that touches and concerns
- Federated homes v Mill Lodge Properties 1980 | Accepted in Roake v Chadha
1984
- the land can be identified (crest Nicholson Residential south Ltd v McAllister
2004
- subject to contrary intention

What happens if it is not what the parties intended? -Contrary intention- if the
wording in the deed is different

Transmission by assignment
- rarely needed annexation is easier
- include in conveyance an assignment of new owner (benefit)/ assigns benefit
to purchasers of land
- New Assignment req. each time land is sold – if so then the chain fails then it
can easily fail
- Scheme of Development

J2b Free Hold Benefit can run at common law and in equity
Covenants- Burden can only run w/ equitable rules
Passing the
Burden Burden Running Rules
- Common law will not enforce an obligation against a person who has not been
covenanted – Austerberry v Oldhalm Corp| Confirmed by Rhone v Stephens
(1994) HL

Equity steps in Tulk v Moxhay – sets out criteria court held that the breach should be
restrained the burden would be passed
- (1) Must be negative in nature (positive covenants don’t pass, i.e expenditure
of money)
- (2) Covenantee must have retained land- covenants must benefit nearby land
(re gadd’s land transfer (1966)- retention of a road was sufficient
- (3) Covenant must touch and concern the dominant land
- (4) Both original parties intended the covenant to run with the land (expressly
wording in covenant- i.e successor in title)
o Section 78& 79 have a similar job- 79 unless a contrary intention is
 expressed ( diff. bet) also defines successors in title in same terms as
78
o Morrells of Oxford Ltd v Oxford United FC (2001)

Tulk v Moxhay Satisfied

- Burden will become equitable interest.
- Will bind successor when:
- It is registered land- protected by entry of notice on the title register of the
burdened land (s.29 LRA 2002)
- Unregistered land post-1925- if registered as a class D (ii) Land charge
- Unregistered land pre-1925: doctrine of notice applies; bona fide purchaser for
value w/o notice (BFPFVWN)

Prove contrary intention- by looking at the full document (i.e successor in title)

Burden becomes an equitable interest – in order to be binding it must be on the

register and meets all the req. of t & m) *different bet. Registers/unregistered pre and
post*
- Claim in equity only gives equitable remedies (injunction, specific
performance)
- If OG cov’tor does not still own their land burden can only run in equity (Rhode
v Stevens)
- t/f any claim to benefit must be in equity -Miles v Easter
- burden and benefit must run in the same medium

Miles v Easter
- OG cov’tor- Successor in title to burdened land- only run in equity
- OG Cov’tee- Successor in title to burdened land- must use equitable rules for
the benefit

Common law only benefit can pass in successor in title

In equity- the benefit can pass by annexation, assignment or building scheme
Burden can pass under t & m

Positive Covenants- Enforcement

J3- Freehold Create a lease instead of a freehold
Covenants – - All covenants which touch and concern can be enforced by landlord (privity of
Circumvention, estate)
Building - Set up a commonhold scheme – a freehold title designed for new blocks of
Schemes, Third flats so that the burden of positive covenants can run
Parties Create a chain of Indemnity Covenants
- Successor in title promises the cov’tor that they will: comply w/ covenant &
indemnify cov’tor against breach (only useful in short term)

Halsall v Brizell (1957) Mutual Benefit and burden

 - To take advantage of facility must comply w/ an obligation to repair/pay for
upkeep
-lec- - Rhone v Stevens- benefit must be linked (grant of a right of way- easement
subj. to pay cost of maintenance (positive)
- Successor choose to exercise corresponding right (Thamsead Town Ltd v
Allotey| Wilkinson v Kerdene)

Scheme of Development
- Example: Build number of houses at same time – impose covenants ‘not be
used for business purposes’
- T/f IF there IS a building scheme- each plot owner can enforce restrictive
covenants against any other plot owner’s no matter order sold
- IF there is NO building scheme- enforcement is dependent on usual
transmission rules for benefit and burden of covenants
Requirements
- Elliston v Reacher (1908)- old req.
Relaxation of req.in Baxter v Four oaks properties (1965)| re dolphin’s conveyance
- Minimum is common intention for mutual enforceability which is understood
by the parties
- t/f estate layout is not essential
Req. laid out in Birdlip v Hunter [2016]:
o applies to defined area & limits of it are known to each purchaser
o Owners w/n area have purchased common vendor
o Each property is burden by covenants intended to be mutually
enforceable between several owners
o Common owner bound by scheme – must sell plots on the same terms
o Its effect will bind future purchasers w/n the are potentially forever
Section 56 LPA 1925
- Extends of the definition of the original covenantee
- Person can take benefit even if not formally named
- If covenant purports to made w/ him seems to be made w/ them

Contracts (rights of third parties) Act 1999

- Expands the group of people able to enforce benefit of contract (does not
affect the burden rules)
- Someone who is not an OG cov’tee can enforce benefit if:
o Express term to that effect or contract purports confer benefit on
them and there is no contrary indication (if they are named in deed
when covenant was made)
- T/f to USE s 56 covenant must be made w/ person claiming the benefit
- Contract (roTP) can be used if covenant purports to confer a benefit on the
person claiming the benefit

Usual remedies for breach of contract

J4- Freehold - Damages
Covenants- - Injunction (restrictive covenant)
Remedies, - Specific performance( positive covenant)
discharge and
reform - Equitable bars to equitable remedies ( can be awarded in lieu especially where
covenantee would have accepted money for release of covenant)

Discharge/ Modification of Covenants

- Deed of release-expensive
- S.84 LPA 1925- done by upper tribunal (lands chamber)
- Examples : where cov. Is obsolete due to changes of neighbourhood |
continued existence prevent reasonable use of the land | discharge will inure
person w/ the benefit
Planning w/ covenants
- Cov are priv obligations- enforceable by neighbour(s) w/ the benefit
- Planning law imposes public obligations relating to: use of land and dev. of
land
- Land owners must comply w/ both obligation – Davies v Dennis
Law commission report aims to impose- general land obligations (EXAMABLE TOPIC)
- Could be restrictive or positive
- Would fall w/n s.1(2)(a) LPA 1925: a right or privilege in over land
- Ben and bur land would need to be identifiable with ben attached to DL & bur
attached to SL
- Requirements: must touch and concern benefited land and the obligation must
be negative on burdened land OR positive on burdend land or it boundary OR
to make a reciprocal payment (may for something to be done on land)
- Creation: potential legal interest (s.1(2)(a)LPA | creation by deed s.52|
Registered land- RD(s.27 LRA 2002) will not bind unless on title registers of
ben&burd land | Unregistered land – registrable as land charges new class G
land charge
If implemented- not possible for cov to pass under t & M | will be transmitted on same
principles as easements

K1 Leases Relevant Statute

Term of years absolute-s1(1)(b) LPA 1925
Deed requirement- s52 LPA 1925- Exception in s54 LPA
Registrable dispositions -s27(2)(b)(i)- (iii)LRA 2002
Interest that overrides LRA 2002 -Schedule 3 para 1 Possibly para 2
Doctrine in Walsh v Lonsdale

- Sub- lease- lease granted out of a leasehold title

- OG leasehold title is the landlord of the sub-lease – i.e head lease id the
landlord of the sublease
o as long as lease is shorter then the one above it)^^
- Requirements for lease:
o Capable grantor and grantee (company w/ discretion)
o Certainty (I,e flat)
o Known to English law(term of years absolute) |periodic tenancy – no
fixed duration (renewed at the end of each period)
 o Fixed maximum duration- must start at a fixed period and needed to
be able to know when the end will take place (ascertainable) | Lace v
Chantler – confirmed in prudential assurance co Ltd v London
residuary body- Mexfield Housing Co-operative v Berrisford (2011) SC-
K2 Lease V Southward Housing Co-op v Walker (2016)
Licence o Exclusive possession (landlord cannot enter and all others)- DIFFERENT
form exclusive possession (sole right to occupy) L can still control
premises
Exclusive possession by itself id not sufficient to constitute a lease
(Global 100 Limited v Maria Laleva [2021] EWCA Civ 1835
If none may be a licence

- Lease: can be a legal estates in land t/f comes with rights can bind purchases|
statutory protection: Rent act 1977. Housing Acts 1988 and 1996, Landlord and
tenant act 1954
- Licence: personal permission to occupy| inferior right NOT a proprietary
interest| not binding on purchasers| no statutory protection
- Key Case of DISTINGUISH bet. Lease and Licence: Street v Mountford (HL
1985)
o Key words- attempt to make a licence however , HoL held that they
had exclusive possession. Paying rent and had a fixed period therefore
it is tenancy
o Exceptions:
o Accommodation based on Charity (hospital being taken of)
o No intention to create legal relations (family, friends, refugee living
w/u)
o Service occupancy (caretaker at school, travel nurse)
o Vendor and purchaser (where the completion of lease has not taken
place)
o Unrestricted access to the premises (housekeeper, maid)
- Exclusive possession (reality of what is happening in each case)- consider
nature and quality (Marhan v Charter)| consider the purpose of the grant,
terms and surrounding circumstances (street v Mountford)

- If the landlord retain supervisory control – likely to be a licence (Westminster

city council v Clarke (1992)

- Who has retained the key (not so important)

- Sham provisions will be ignored (Aslan v Murphy| Westminster city council v

Clarke(held that it was a licence) | Watts v Stewart [2016] rejected by court of
appeal – see the intention of parties

- Camelot Guardian Management Ltd v Khoo [2018] EWHC 2066 (held that it is a
licence)

- Multiple Occupation
-multiple occupancy
 o Antonidanes v Villers (1990) HL- Interdependent licence agreements cannot be leaseholders -
for 1 bedroom flat – A lease- landlord term was a sham four unites must be
o A G Securities v Vaughan (1990) HL Four Independent licence present to support a join
agreements for 4 bedroom flat ( A licence) not responsible for others tenancy
rent if they leave
o Other Cases: Mike v Brady (1989) (licence) | Hadjiloucas crean HL
(1988)- ( held that it was not a joint- tenancy or a lease)

- Business Tenancies
o Street v Mountford applies but principle less absolute – Dresden
Estates Ltd v Collinson | NCP trinity Development
o Bruton v London & Quadrant Housing Trust – held that the 3 street v
Mountford hallmarks were present suggesting a tenancy – but it was a
personal lease so it was only binding between the parties only
K3 Lease
Leasehold Covenants
- Few implied obligations in leases i.e landlord- quiet enjoyment | Tenant- pay a
reasonable rent, rates and carry out (minimal repairs)
- t/f lease will usually expressly include tenant and covenants (in detail)
Rent
- Usually an express covenant
- Payable in arrears unless stated otherwise
- Rent (or means of determining it) must be certain
- Rent reviewed at intervals – current issues over long leasehold house
- Rent remain payable even if premises are damaged
Repair
- Usually, tenants responsibility
- Cov. To repair and keep the premises in repair throughout the lease
- For a lease of part the landlord repairs common parts’ w/ tenant paying
through service charge (includes damage by fire, food)

Standard of Repair
- Proudfoot v Hart (1890) – in regard to age, character and locality of property
for a tenant of similar class would be likely to take it-
- Determined by reference to the standard required at the start of the lease-
Calthorpe v McOscar
Extra wording
- Good, sufficient, substantial, tenantable repair- adds nothing to repair
obligation
- To put in repair/To keep repair- adds req. for tenant to repair any initial
defects

Extent of repairs
- Generally no obligation on tenant to improve - Ravenseft Properties Ltd v
Davstone (Holdings) Ltd (1980) |Post Office v Aquarius Properties Ltd (1987) |
Lurcott v Wakely and Wheeler (1911)
- Different if covenant is to repair and renew
Landlord and Tenant act 1985
- S.11-14 leases of dwelling house for less than 7 years
- Landlord must- Keep structure and exterior in repair (includes- drain, gutters
and external pipes s.11a)- Keep installations in house in repair and proper
working order – equipment for supply of gas, water, electricity |facilities for
sanitation| Facilities for space and water heating

S.11 LTA 1985

- Structure & exterior- elements which give essential appearance and shape
- Steps- main access- part of exterior (brown v Liverpool corporation) NOT
secondary access – Hopwood v Cannock chase DC
- Pathway Access- exclude- Edwards v Kumarasamy
- Internal decorations – excluded – internal ceilings and plasterwork are
included (Hussein v Mehlman)

Homes (fitness for Human habitation) Act 2018

- Requires rented properties to meet certain standards (at beginning and
throughout tenancy)
- Change from 1985- as a property must be fit for habitation rather than in
repair
- No def, wording in 1885 act is retained as – any prescribed hazard posing a risk
or harm to the health or safety of an occupier
- Each case will turn on its own facts

Alienation
- Disposing the lease
- Sale of the lease to another (assignment)
- Grant of sub-lease (underlease)
- NO implied obligation to ask for L’s consent
- Absolute covenant – assignment or underletting is NOT permitted
- Qualified covenant: assignment or underletting is permitted w/ landlord’s
consent
o S 19 (1)(a) Landlord and Tenant act 1927-L’s consent will not be
unreasonably withheld
o S 144 law prop. Act- landlord CANNOt demand a premium for granting
consent (unless lease allows it )
o CAN ask for reasonable legal and other fees to give consent
- Bermondey v exchange Ltd v Nono Koumetto

S.1 Landlord and Tenant Act

- where tenant has applied for consent to assign or underlet L owes a statutory duty ,
to GIVE:
- Decision w/n reasonable time
- consent (unless reasonable not to) w/n reasonable time
- Pass application to others whom consent is required
- Go west v Spigarolo
 Reasonable refusal
- International drilling fluids v Louisville Investments (Uxbridge) Ltd (1986)
- Landlord cannot refuse consent on grounds which have nothing to do with the
landlord and tenant relationship (case facts)
- Can refuse if thy intend to breach user covenant (Ashworth Frazer v Gloucester
city council (2001 HL)

Other Covenants
- Covenant against illegal (conviction would be conclusive) or immoral user
(question of fact subj.)
- Covenant not to cause a nuisance or annoyance (question of fact)
o Anything that raises objection is the minds of reasonable men- Tod-
Heatley v Benham (1888)
- User- restricting use of residential premises | Limiting type of business on
commercial premises
- Alterations- Prohibiting all alterations |requiring landlord’s consent for some
or all alteration
-

K4 Lease Forfeiture (landlord doesn’t have automatic right must have it in lease)
- Ways to forfeiture: if tenant has not been paying their rent- only possible
when rent has been FORMALLY demanded –(Common Las and common law
procedure act 1852)
- No formal demanded is required -If there is more than 6 months arrears
(s.210)
- If tenant pays all of the rent has been paid before court trial they will be
granted relief- gibbs v development
Other breaches:
- S.146 Law of property act 1925: tenant must know what they have done
wrong and must be given reasonable time to remedy the wrong| request
payment (landlord – if necessary)
- Leasehold Property Repairs Act 1938: applies to lease of more than 7 years and
3+ years left to run| may counter notice
- Not all breaches can be remedy- Positive covenants can be remediable (Expert
Clothing services and sales Ltd v Hillgate House Ltd (1987)
- Negative Covenants depends:
o If it is tainted (to assign out sublet held in Scala v Forbes (1974))-
IRREDIMABLE
o Breach of user covenant – IRREMEDIABLE (rugby school governors v
Tannahill- property used for brothel (tainted)
o Breach of alterations covenants – remediable Savva v
- Did the tenant act promptly the court will hold that it Is remediable ( Patel v
K&j Restaurants limited (2010)
- Glass v Pancakes- no taint on property because of prompt response
 - S.146- If t does not comply, L can re-enter (anytime before court, if l re enters-
case)
- Relief is discretionary
- The Manchester ship Canal Company v Vauxhall Motors LTD- relief from
forfeiture can be granted under a contractual licence (for both proprietary and
possessory rights)- pushing boundaries of the rights of the liscencee
Forfeiture will only work if the landlord is firm- breaches may be waived if the landlord
is accepting the rent (does not effect continuing breaches) even if it is inadvertently
- **Needs to be 6 months for forfeiture **
- Other circumstances need to have a forfeiture clause

- Lease Termination: Expiry| Notice to quit (break clause)| Frustration (very rare
but is not impossible) | Forfeiture| surrender(mutual agreement by landlord
and tenant to end the lease- can be done by deed and implication)| Disclaimer
(by way of statue- trustee may have right to disclaim an onerous lease) |
merger (leases land to tenant- then tenant buys the freehold - in franchise the
lease)

Leases 2B - Long Leaseholds-99 years + (premium rather than monthly rent)

(K5)- Current - Loses value as the lease goes on
Developments
and Reform - Commonhold (Scotland abolished long leases and resorted to commonhold)
- Law commission consultation paper 241
- Leasehold reform- trying to make freeholds easier to buy
- Leasehold reform (ground Rent) Act 2022