Land Flowcharts (essay plans):

FIXTURES AND CHATTELS:

Step 1: State
- classify objects as either fixtures or chattels (even if contract is silent on what is
included on the sale)

Step 2 : Define (refer to grid for authorities and statutes)

- Fixtures = from part of lane – must remain with the land when land sold on
- Chattels = removable object that does not form part of the land – buyer will be free
to take them

Step 3 : Apply 2 tests to determine whether fixture or chattel

- Test 1 = degree and method of annexation Berkley v Poulett
o Apply to the facts
 How firmly is item attached to the land?
 If attached to soil/securely affixed to the land/ would cause
damage if removed – presumption = fixture (may be rebutted
by test 2)
 If something is fixed = fixture Holland v Hodgson
- Test 2 = Object and purpose of annexation D’Eyncourt and Leigh v Taylor
o D’Eyncourt: if forms part of architectural design of garden/ house = fixture
(even if freestanding or not firmly fixed, i.e., fountain in garden)
o Leigh: annexation is only way object can serve its function/ purpose = fixture
Step 4: Cases where objects were categorised as fixtures or chattels

- Apply cases to the facts to reach conclusion

o Fixtures can only be transferred by conveyance
 Anything that is a fixture on the date of sale or mortgage is part of the
sold/ mortgaged property so cannot be removed without express
permission
o Chattels only need to be delivered to another to transfer ownership
ENFORCEABILITY OF THIRD-PARTY RIGHTS

Step 1: identify type of third-party right being claimed

- Easement
- Lease
- Restrictive covenant
- Estate contract
(Refer to grid)
Step 2: is it capable of being legal?
- Easements, mortgages, leases (s.1(2) & s1(1)(b) LPA) = YES (grid)
- Restrictive covenants, estate contracts, options, beneficial interests, trusts FLA s1(3)
LPA: NO
Step 3: What formalities required? Has it been validly created?
- Refer to the grid
- Trusts:
o Express = in writing s.53(1)(b) LPA
o Implied = arise without formalities s 53(2) LPA
Step 5: Classify the interest
- Legal
- Equitable
- Statutory
Step 5: will it bind the buyer? Depends on if land is registered or unregistered.
- Unregistered:
o Is the right registerable on the Land Charges Register?
 Puisine Mortgage = Class C(i) land charge
 Estate Contract = Class C(iv) land charge
 Restrictive Covenant = Class D(ii) land charge UNLESS:
 Contained lease
 Created before 1926
 Equitable easement: Class D(iii) land charge
 S.30 FLA right to occupy the matrimonial home: Class F
o If the right is registerable, depends if registered against owner’s name by
date of completion of sale s.3 s.4 LCA 1972
 If registerable = binds the buyer
 If not registerable = buyer takes free of interest (unless gift)
o If right is NOT registerable depends if legal or equitable:
 Legal = binds buyer
 Equitable depends if trust or non-trust:
 Trust = binds buyer UNLESS:
o He has overreached s.2 &37 LPA
o He is Equity’s Darling
 If non-trust = binds buyer unless Equity’s Darling
- Registered:
o Classify the right as either a registerable disposition, and overriding interest,
a trust interest, or Interest Affecting Registered Estate:
 Registerable disposition s 27 LRA most legal interests- refer to grid):
 Legal easement (expressly by deed)
Legal charges (e.g., mortgages)
Legal lease over 7 years
o Even if not registered check for sch.3 para 2
 Overriding interest sch. 3 LRA para 1-3 (both legal and equitable
interests) (refer to grid):
 Legal lease for 7 years or less = sch. 3 para 1
 Interests of person in actual occupation Sch.3 para 2 (ref grid)
 Legal easements (prescription/ implied sale of part) provided
Sch. 3 para 3(1):
o Within actual knowledge of buyer
o Obvious on a reasonably careful inspection of the land
o Used within the past year
 Trust interest
 Express trusts, implied trusts (resulting or constructive)
 Cannot be protected by notice (s.33)
 May be recorded as a restriction in the Proprietorship Register
at Lan Registry by date of registration
 All other interests (most equitable interests)
 Estate contract
 Equitable easements restrictive covenants
 FLA rights – refer to grid
o How to bind the buyer?
 Registerable disposition: must be registered at Land Registry by date
of registration of buyer as new owner s.29 – only legal at this point
(deed sufficient)
 Overriding interest: must exist by date of registration of buyer as new
owner, need NOT be registered
 For sch.3 para 2 – completion of sale is the relevant date for
assessing Actual Occupation
 Trust interests:
 Restriction will alert the buyer to need to overreach (buyer
pays all purchase monies to all Trustees being at least 2 in
number)
 If buyer fails to overreach they will be prevented from
registering the purchase
 If no restriction recorded, trust interest might be overriding
under sch.3 para 2 – must overreach to purchase free of any
interest
 IAREs: must be registered on charges at Land Registry by date of
registration of buyer s.29

Step 6: Conclusion, does third-party interest bind the buyer?

- Refer to the grid and apply to the type of third-party right.

LEASES AND LICENCES

Step 1: Is it a lease or a licence?
- Define both (refer to grid):
o Lease = proprietary interest in land, granting owner the right to exclude all
others, including the landlord, from the land for the duration of the term
o Licence = personal permission to be on the land Entick v Carrington
 Licence is not proprietary interest so can only be enforced against the
licensor so will not bind 3rd parties
 Court may grant damages instead
- Consider test in Street v Mountford
o Has tenant been granted exclusive possession and certainty of term? If yes,
then lease
- AG Securities v Vaughan = different rental amounts paid on different dates = licences
Step 2: Are there multiple occupants?
- If YES = consider whether 4 unities are present:
o Possession – everyone has equal right to occupy the property
o Interest – everyone has the same leasehold interest for the same term
o Time – all interests start at the same time
o Title – all the interests derive from the same document, or from identical
documents
Step 3: Formalities
- Refer to the grid to ascertain this
o Ensure that if a lease, necessary formalities for creation and enforcement
have been complied with – will depend upon length of the lease and whether
it has been granted over registered or unregistered land
- If formalities not complied with, not legal lease so move on to working through
equitable lease
Step 4: Categorise the licence
- If there is not a lease, analyse the type of licence
Step 5: Conclude
- Is there a valid lease?
- Is it enforceable?
o If yes, against who?

MORTGAGES

Step 1: Define
- A mortgage is a proprietary interest in land given by the mortgager as security for a
loan. The mortgager receives the loan in return for giving the mortgagee (often a
bank) security over the land. Santley v Wilde – mortgage defined as “a conveyance of
land…as security for the payment of debt or the discharge of some other obligation”.
Step 2: Formalities – is it legal or equitable?
- Refer to the grid for formalities
- Land can be re-mortgaged several times. A second mortgage must be registered as
C(i) at Land Charges Department or will not be binding.
Following steps may not apply to every scenario, so apply what is relevant to the fact
pattern

Step 3: Are all terms enforceable?

- Mortgage = solely security for a loan, no extra benefit or term added
- Date of Redemption:
o IN EQUITY – mortgager described as having “equity of redemption”
o Represents the mortgagers equitable interest in the property, consists of the
sum total of the mortgager’s rights in relation to the land.
o General rule = must be no impediment on the equity of redemption
o Redemption (first date that mortgage can be repaid in full) cannot be
prevented altogether Toomes v Conset
 Can be postponed if the date of redemption is not so far in the future
as to render the right to redeem illusory – question of degree
- Option to purchase:
o Will generally be held void if included in a mortgage Samuel v Jarrah Timber
o Can only be valid if granted afterwards in separate agreement Reeve v Lisle
- Collateral Ties:
o Struck out if unconscionable, a penalty, a restraint of trade or a clog on the
equity of redemption
 Pg 435 guidebook for case refs
- Interest Rates:
o The court can strike down a penal rate of interest Holles v Wyse, one that is:
 Exorbitant, extravagant, or unconscionable (Cavendish v Makdessi)
OR in conflict with:
 Consumer Rights Act 2015 must NOT be an unfair term –
contrary to good faith and arising from significant imbalances
in the parties’ rights to the detriment of the borrower BUT
applies between traders and consumers, only relevant to retail
banking
 Unfair Terms in Consumer Contract Regulations 1999
 Consumer Credit Act 2006 – rate must not arise from unfair
relationship
 Compare case law utilising examples of unconscionable interest rates
and acceptable interest rates (page 436 guide).
Step 4: has the lender taken precautionary steps?
- If borrows partner has not expressly or impliedly consented to a mortgage being
taken out over a joint property, the innocent partner will continue to have an
overriding equitable interest in occupation Williams & Glyn Bank v Boland
- Lenders must take care to ensure that consent is not obtained as a result of undue
influence – in such case, the mortgage will be set aside Avon Finance v Bridger
- Lender will be put on enquiry where there is a substantial risk that consent was
obtained through improper means
o RBS v Etridge No.2 where the loan did not benefit wife
o Barclays v O’Brien Wife guaranteed debts of husband or the husband’s
company
 o Avon v Bridger someone with non-commercial relationship guaranteed the
debts of another
o Perwaz v Perwaz – upper tribunal level suggests any undue influence must be
shown to predate the transaction impugned
- Lender will NOT be put on enquiry where money is advanced for apparent joint
benefit
o E.g., CIBC Mortgages v Pitt – loan given for holiday cottage. Husband lost
money speculating on the stock exchange, but the bank had no knowledge or
reason to suspect that he had to put pressure on his wife to secure her
consent to the loan
- If lender is put on enquiry, it must take reasonable steps to explain the risks of
consenting – lender is entitled to assume that a solicitor has provided correct
independent advice, the mortgage is enforceable even if that is not true.
Step 5: Consider lender’s powers in enforcing a legal mortgage
- Debt actions
o Will be the lender’s first option to reclaim the loan + interest – mortgage may
be unable to pay SO consider following:
 Foreclosure: equitable remedy (rare) awarded at court’s discretion;
land is taken in satisfaction of property and the lender keeps surplus
proceeds of sale
 Appointing a receiver: someone who oversees the sale and prevents
the lender being liable for a negligent sale s 101 LPA
- Right to take possession:
o Lenders can take possession:
 Can take possession as soon as the mortgage is signed Four Maids v
Dudley Marshall = prelude to sale and allows the lender to make the
best financial recovery by selling with vacant possession
 Self-help is possible, entry must not be forced so is risky Ropaigealach
v Barclays
 Lender could instead apply for court-order though gives mortgagor
extra-protection under s.36 Administration of Justice Act 1970 –
possession postponed (at courts discretion)if borrower can repay
within reasonable period
 Court will postpone an order for possession if the mortgagor has a
sound financial plan to repay the instalments National & Provinvial v
Lloyd – postponement less likely to be awarded by the court if the
lender is prejudiced by falling property prices and no clear repayment
plan Bristol & West Building Society v Ellis
 Lender is liable to account to the mortgagor for any rent they could
have made whilst in possession White v City of London Brewery
 Lenders should follow pre-action protocol by discussing alternatives
with the mortgagor before taking possession as a last resort
- Power of Sale
o POS arises as soon as first capital instalment is due Payne v Cardiff RDC,
under s 101 LPA (means falling behind on repayment mortgage but not on an
interest-only mortgage).
 o Power can be exercised by the lender even if the lender has not taken
possession – but the land’s resale value will be less because the mortgagor
will still be in possession
o BUT power can only be exercised if notice is served, and if the mortgage is in
arrears or there is some other breach s 103(i)-(iii) LPA
Step 6: The lender’s duty when exercising a power of sale
- Lender’s must take care to obtain “proper price” (not best) – true market value
Cuckmere Brick Co v Mutual Finance
o Lender should get one or more independent valuations of property
- Lenders can sell whenever they choose even if they could obtain higher price by
waiting (Cuckmere) BUT must do so in good faith
o Advertise property and obtain independent advice/ valuations
- Lenders can choose how to sell the property.
o Auctions often used as they are public events with advertisement
opportunity and price clearly set through bidding process
o Auctions show proper price was obtained in good faith, even if poorly
attended and low bidding cuckemere & Tse Kwong Lam
o Any surplus proceeds of sale are held on trust by the lender for the second
mortgagee (if there is one) and then borrower s 105 LPA
Step 7: Payment priorities for lender when exercising a power of sale
- Legal mortgages of registered land: first mortgage to be registered is repaid in full
BEFORE any other mortgage s 48 LRA
- Equitable mortgages of registered land: the first mortgage to be created is repaid in
full
- Mortgages of unregistered land: the first mortgage takes priority over the puisine
Step 8: Conclude

EASEMENTS

Step 1: Define
- Easement is right benefitting one piece of land (dominant tenement) that is enjoyed
over another landowner’s land (servient tenement). Easement is not an estate in
land Baker v Braggs
- Positive = allows the owner of the dominant land to do something on the servient
land (such as use road)
- Negative = limits what owner of the servient land may do on the servient land
o State that the issue is whether the easements are enforceable (making
diagram is useful to remember/ establish who is who)
Step 2: Is the right capable of being an easement?
- Re Ellenborough Park criteria
o Dominant and servient tenement must exist London and Blenheim Estates v
Ladbroke
o The easement must accommodate (i.e., benefit) the dominant tenement by:
 Improving or making its use more convenient in some way connected
with the normal use of the property
  Dominant and servient tenements must be sufficiently proximate, i.e.,
nearby even if not direct neighbours Bailey v Stephens
o Prior diversity of occupation – tenements must be owned by different people
Metropolitan Railway v Fowler
 Wheeldon v Burrows = creation of “quasi-easement”. Benefits one
piece of land over another where both pieces of land are owned by
the same person
o Capable of lying in grant – being subject matter of a deed
 Refer to the grid for examples of rights capable of lying in grant
o Courts will not recognise new negative easements – list is closed Hunter v
Canary Wharf BUT may recognise new positive easements Regency Villas.
- Additional criteria to consider (details and authorities in grid):
o The grant must not require expenditure by the servient tenement owner
 Note Rance v Elvin – right to allow water through pre-existing pipes
where servient tenement owner was legally obliged to pay the water
meter in full for both owners – court held that his was allowed
because the dominant tenement owner was liable on quasi-contract
to reimburse him
o Grant must not amount to exclusive possession
 Grigsby v Melville – right to store items in cellar was NOT easement
 Hair v Gillman – easement ro park car allowed as long as choice of
parking space
 Moncrieff v Jamieson – servient owner is not deprived of possession
and control over spaces
o The grant must not depend on permission by the servient tenement owner
Green v Ashco Horticultural
Step 3: How has it been acquired as easement ?
- By express acquisition when it was granted or reserved? STEP 5
- Implied acquisition when granted or reserved?
o Necessity: must be completely impossible to use land without easement
(Manjang v Drammeh) NOT just advantageous
 i.e., use of sewerage pipes not necessary as could use sceptic tank
Pryce v McGuiness
o Common intention: where both parties intend the property to be used in a
specific way Wong v Beaumont
 if easement were to arise by common intention in a reservation
situation there must be no other possible interpretation of the facts
Peckham v Ellison
o Wheeldon v Burrows (only applies to grants): the easement will be impliedly
granted if immediately prior to the sale of one of the tenements there was a
common owner-occupier of both tenements
o Continuous and apparent: obvious like a well-worn path Sovmots v Secretary
of State for the Environment
o Necessary to reasonable enjoyment of property which is not as strict as
necessity above.
 REFER TO GRID FOR AUTHORITIES AND FURTHER DETAIL
o In use at the date of transfer
 o S 62 LPA can also be used to transfer quasi-easement on sale of one of
property into full easement BUT can be expressly excluded s 62(4).
o Prescription: if has been in use for 20 years without interruption or protest
then it will be impliedly acquired
 Must also be known landowner
o After 20 years of continuous use there is judicial presumption of lost modern
grant – fictitious common law construct allowing court to enforce the
easement as if it had been granted Orme v Lyons
Step 4: Has the use of the right changed or become excessive?
- User can be restricted to the extent that the right was used at the time that
easement was granted
Step 5: Is it legal or equitable?
- Determined by the document in which it was included e.g., 10 year lease
- If has been expressly acquired, to be legal it must be (if impliedly acquired
formalities not necessary): REF GRID
o Created for duration of the freehold or leasehold
o Acquired by deed
o Registered
- If formalities not fulfilled, if it is not a contract for future grant of easement or if
grantor only has equitable estate, it will be equitable. Valid contract = necessary s 2
LP(MP)A North Eastern Properties Ltd v Coleman
Step 6: can it be enforced by or against successors in title?
- If ownership of DOMINANT land has NOT changed, then original guarantee can still
enforce it as they retain benefit.
o If ownership has changed, successor-in-title will get benefit, it will
automatically pass to successor-in-title of dominant tenement s 62 LPA 1925
- If ownership of SERVIENT tenement has NOT changed, original grantor retains
burden
- If ownership HAS changed:
o Registered land:
 Legal and expressly acquired easement = burden passes under s 27(2)
(d) LRA
 Legal easement acquired impliedly or by prescription = capable of
being overriding sch. 3 para 2.
 Does not need to be registered and will bind if known about,
obvious on reasonable inspection or exercised within a year.
 Equitable easement = protected by notice on charges register of
servient tenement s 32 LRA
o Unregistered land:
 Burden passes is legal and acquired in any way as legal rights bind the
world
o Equitable easements must be registered either as an equitable easement
D(iii) Land Charge or as estate contract C(iv) Land Charge, binds purchasers
for value
 If pre-1926 and still unregistered consider Doctrine of Notice
Step 7: Has it been extinguished?
- Easement can be extinguished by:
 o express agreement
o Implied release where it has been abandoned
Step 8: conclusion and remedies
- Is particular right capable of being easement with formalities complied with and
validly acquired?
o YES = no other issues and can be enforced by original or successor grantee
against original or successor grantor of servient land
 Injunction or damages will be granted

FREEHOLD COVENANT

Step 1: Define
- Covenant = promise made by one party to the benefit of another party, usually
contained in a deed MacKenzie
- Benefitted land = land which benefits from covenant, owned by covenantee
- Burdened land = bare burden of carrying out covenant, owned by covenantor
o Name the issue (probably enforceability)
 Only able to enforce performance of covenants if benefit enjoyed by
predecessor covenantees passes.
 If burden agreed to by predecessor covenantors passes to successor
covenantors because there is no longer privity of contract between
parties.
o Identify benefitted and burdened tenements then identify original
covenantees and covenantors and successors
- Explain covenants and potential breaches:
o This will depend on the fact pattern/ if there is anything in the charges
register and act as main point of analysis.
 Successor covenantee may be able to choose who to sue – original
covenantor or the successor
 Consider if the burden has passed in equity or common law
 Can be sued for damages at common law
 ONLY successor covenantor can be ordered to remedy the
breach in equity (this is preferrable as injunctions are available
to prevent or remedy a breach
o Both benefit and burden must pass in equity, or both
must pass at common law CANNOT MIX AND MATCH
Step 2: Has the BURDEN passed in equity
- Tulk v Moxhay – 4 requirments:
1. The covenant is negative in substance:
a. Test: covenant will be negative id it can be complied with by doing nothing
(not spending money, time, effort – “hand in pocket” Haywood v Brunswick)
b. If unclear: may be possible to sever in to two or more components, allowing
the clearly negative part to pass the test Shepherd Homes v Sandham. OR if
mostly negative with contrary minor condition, can be viewed as wholly
negative Powell v Helmsley.
c. Equity will never enforce positive covenants against successors-in-title Rhone
v Stephens
 2. Covenant must accommodate the benefitted tenement (three parts):
a. Original covenantee had estate in the benefitted tenement at the time the
covenant was created AND successor has an estate in the benefitted
tenement at the time of enforcement London County Council v Allen
b. Covenant touches and concerns the land P&A Swift Investments v Combined
English Stores “the nature, quality, mode of use, or value of the covenantee’s
land”.
i. Test is whether it benefits the land not just the landowner
c. Benefitted and burdened tenements are sufficiently proximate
3. Original parties intended the burden to pass:
a. Can be shown through express words of title deed – if not shown in the deed,
it will be implied by s 79 LPA unless expressly excluded.
i. Annexation: benefit of covenant is tied to the land at the time the
covenant is made, passes automatically with land. (express, implied,
statutory)
ii. Assignment: If not annexed on creation, benefit can be assigned to
successor expressly – in writing and signed s 53(1)(c) LPA Miles v
Easter
iii. A scheme of development: only mention where a property developer
subdivides a large plot of land and created covenants that bind all
plots and are enforceable by and against all purchasers – conditions of
Elliston v Reacher (pg. 448 core guide).
4. Notice provisions:
a. S 32 notice must have been entered on Land Charges register of the
burdened freehold for registered land (or D(ii)) prior to sale of burdened land
– if notice entered, covenant would bind successor purchaser. If not, only
volunteer successor will be bound.
Step 3: Has the BENEFIT passed in equity
- Covenant must touch ad concern the land P&A Swift
- The Covenantee’s successor-in-title became entitled to the benefit of the covenant
either by annexation, assignment or a scheme of development Renals v Cowlishaw
Step 4: Draw an interim conclusion:
- For which of covenants has both the benefit and burden passed in equity?
o Point out that covenants have passed and so successor can enforce them in
equity
 For common law = step 5
Step 5: Has BURDEN passed at common law?
- GENERAL RULE = burden does not pass at common law Austerberry v Oldham
Corporation
- EXCEPTION = Halsall v Brizell (mutual benefit and burden)
o Benefit and burden must be explicitly interlinked
 i.e., not possible to take the benefit without also having to take the
burden
 Principle does not apply in advance
o successor covenantor must also have a genuine choice to take both benefit and
burden, or to take neither
 If there is no choice, burden will not pass
 o Other options if burden does not pass:
 Pursue original covenantor – they remain liable under common law
for any breachers of covenant even if it is the successor that commits
the breach Topham v Earl of Sefton & s 79 LPA
 BUT original covenanter can only pay damages = limited use for
successor covenantee
 Indirectly pursue the successor covenanter by a chain of indemnity
covenants
 If original covenantor ensured on sale of estate that a successor
provided indemnities against breaches – if original covenantor
were pursued successfully there would be claim for damages
against original covenanter. Only damages available but threat of
damages might deter successor from starting or continuing
breach.
 Covenantee could place s 40 LRA restriction on register of servient
land
 No transfer of burdened land can take place without covenantee’s
consent
 This makes new covenant so issues of burden passing are
irrelevant and burden now taken on by successor covenantor
Step 6: Has BENEFIT passed at common law?
- Requirements:
o May be expressly assigned under s 136 LPA: original covenantee must do so in
writing and give to successor covenantee. Written notice must also be given to
covenanter.
o Could also be impliedly assigned P&A Swift:
 Touches and concerns land
 Demonstrates original parties’ intention that the benefit should pass with the
land retained by the covenantees - implied under s 78(1) LPA
 At the time the covenant was created, the covenantee must have had a legal
estate in the benefited land
 St time of enforcement successor in title must hold legal estate in benefited
land (not necessarily same estate) Smith & Snipes Hall Farm v River Douglas
Catchment Board
Step 7: Formalities (refer to grid)
- Freehold covenants = only equitable & must be protected to bind successor owner of
servient land
o Done by notice
 Have covenants been protected?
 Is successor covenantor or purchaser or volunteer?
o If successor is purchaser and no notice or D(ii) entered then NOT
binding on successor
Step 8: Conclude
- Which covenants pass?
- Do they pass in equity or common law?
- Who now bears the benefit and burden
- What remedies are available for each covenant as a result?
 - Is the enforceability issue solved?
- Have all formalities been complied with?

ESTATES AND INTERESTS IN LAND

Grid = best friend here!!!
Step 1: identify the parties and which interests / estates in land may exist in scenario

Step 2: define each of the interests / estates that may exist, and for each, state whether it is
capable of being legal

Step 3: State the formalities required for each interest. Has each interest been validly
created?

Step 4: Will the interest bind the purchaser of land?

Step 5: Conclude
- will the buyer take the land free of all interests?
- What interests are there?
- Are they overreached?
- Are they overriding?

CO-OWNERSHIP OF LAND

Step 1: introductory points

- Whenever land is co-owned, a trust is imposed by statue s 34(2) LPA = trust of land
o Separates legal and equitable title to the land between the trustees and the
beneficiaries
o To create trust must be evidenced and signed in writing s 53(1)(b)
Step 2: initial acquisition – how is the property held at common law
- Legal title only held by way of a joint tenancy s 1(6) LPA – cannot be served to create
a tenancy-in-common s 36(2) LPA
- Max number of legal owners = 4 s 34(2) Trustee Act 1925.
o More than 4 names mentioned on conveyance = first 4 named (of age and sound
mind) will hold legal title as trustees s 34(2) LPA
o Trustees must be of full age ss 1(6)&20 LPA & s 1 Family Law Reform Act = must
be 18 and of sound mind.
o STATE WHO THEY ARE
Step 3: Initial Acquisition – how is the property held in equity?
- To be JTs, four unities must be present AG Securities v Vaughan
o if unity of possession present but nothing else, will be a tenancy in common
rather than JT
- Consider express declarations – express words prevail over presumptions Pink v
Lawrence
- Where there are no express declarations, consider words of severance in grant
o E.g., “in equal share” Payne v Webb “to be divided between” Fisher v Wigg –
indicate TiC
 - Commercial situations are presumed TiC (Lake v Craddock) unless rebutted by
express words.
o If equitable presumption against JT exists, because the purchase money is
provided in unequal shares, the tenants are presumed to own TiC’s in proportion
to their payments Bull v Bull
o Domestic cases = presumption of equal shares unless there is evidence to
contrary Stack v Dowden
o Wide range of factors can be considered, financial contribution = one of those
- In JT – tenants/ co-owners constitute one legal owner.
o On death of JT, their ownership immediately passes to other JT by right of
survivorship – NOT by will, because will operate after death Re Caines
o Do not use word ‘share’ for JT, only for TiC
o In TiC, each co-owner has a distinct but undivided share in land, shares can be
unequal
 No right of survivorship.
o POSSIBLE TO BE JT AT COMMON LAW AND TIC IN EQUITY
Step 4: Have there been any acts of severance? – be certain about whether JT has been
severed or not
- JT never severed at law s 36(2) LPA only beneficial can be
o Severance off equitable interest of JT only affects severing tenant
o Others = still joint tenants of the rest UNLESS just 2, then both become TiC)
o Severing party becomes TiC
- In absence of express agreement – shares arising from JT are always equal
(irrespective of initial contributions) Goodman v Gallant
Acts of severance:
- Sending notice to Land Registry = not sufficient act Fantini v Scrutton
- Written notice given to all tenants stating an irrevocable intention to sever
immediately s 36(2) LPA
o Harris v Goddard = divorce petition alone is not immediate enough
o Must be served upon all other JTs by being left at tenant’s last known home or
business address s 196 LPA, if posted, rules in ss 196(3)&(4) apply even if not
read by tenant Re 88 Berkeley Rd.
o Once served, notice cannot be revoked Kinch v Bullard
- An act of operating on own share
o Paige-Wood VC in Williams v Hensman:
 Total alienation – disposition od tenants share to 3rd part under s 53(1)(c) LPA
 Partial alienation such as taking on equitable mortgage First national
securities v Hegerty
 Involuntary alienation i.e., bankruptcy Re Gorman
 Divorce proceedings that have become irrevocable Re Draper’s Conveyance
- By mutual agreement or course of conduct:
o Mutual intention to sever is inferred from action Williams v Hensman
o Inconclusive negotiations are not sufficient to sever Nielsen-Jones v Fedden
 BUT where there is evidence of intention inconclusive negotiations may be
sufficient to sever Burgess v Rawnsley
 o Merely agreeing to put a jointly owned property up for sale = insufficient to
constitute severance what passes between the parties paying little attention to
what was simply in each of parties’ minds Davis and another v Smith
o An agreement to deal with a property in a way that involves severance is
sufficient Hunter v Babbage
o Murder (or assisted suicide) severs the tenancy under the Forfeiture Rule but
relief from forfeiture may be available where a suicide is assisted
Step 5: Consider the Trusts of Land and Appointment of Trustees Act
- Appointment of new trustees:
o If trust instrument does not specify, existing trustees can appoint under S 36(1)
Trustee Act
o Must be done by deed (Section 40(1) Trustee Act) for property to vest in new
trustees
- Alternatively, beneficiaries can appoint if:
o Beneficiaries are willing and legally competent (sui juris)
o Written directions given under S 19(1)(b) and 19(2) TLATA
- Minimum of two trustees recommended
o To give valid receipt
o Enables overreaching to operate
- Trustee powers set out in ss. 6-9 TLATA
o Trustees can be overruled by the terms of the trust instrument s 8 TLATA
o Duties to consult and obtain consent from beneficiaries ss. 11(1) & 8(2) TLATA
- Beneficiaries have a right to occupy the land if that is the purpose of the trust ss. 12
& 13 TLATA
Step 6: termination of co-ownership?
- When property is sold, proceeds are split equally between beneficiaries
- Joint tenancy ends if:
o Union in sole surviving tenant
o One tenant acquires all beneficial interests
- If land sold without court order:
o Trustees have power of sale if absolute owners (s6(1) TLATA)
o But must regard beneficiaries' rights and consult them (s6(5) TLATA)
o Give effect to wishes of majority of beneficiaries (s11(1)(b) TLATA)
- If dispute after sale:
o Consider applying for s14 TLATA court order
o Any interested party can apply for s14 order
- For s14 order, court must consider factors in s15(1)-(3) TLATA:
o Intention, purpose, circumstances
o Wishes of beneficiaries
o Welfare of creditors and minors
o (Spouses/partners not mandatory consideration)
- Refer to page 466 for case and authority references
Step 7: Will potential buyers be bound by any equitable interests?
- If they are buying from two or more trustees, the buyer will overreach the
beneficiaries’ equitable interests and so take the land free of them ss 2 & 27 LPA
- If buying from one surviving co-owner:
 o Registered land: s 40 LRA restriction is entered on the proprietorship register, the
buyer must overreach, or the interests of anyone in occupation are overriding if
the elements of sch.3 para 2 LRA are present, unless one of the exceptions are
present
o Unregistered land: beneficial interests are not registerable at the Land Charges
Department because they can be overreached. If they are not overreached, the
purchaser will not be bound if they are Equity’s Darling.
o Spouses can enter a Class F restriction at the Land Charges
Department for unregistered Land or s 32 LRA notice for registered
land
o Court ordered sale under s 14 TLATA will always constitute an
overreaching event s 2(1)(iv) LPA
Step 8: Conclude
- What is the final position on who owns the land?
- Who holds how much as TiC’s or JT’s?
- Who has severed?
- Has the joint tenancy been terminated?
- Will a potential buyer be able to buy the land free of any beneficial interests?

LEASEHOLD COVENANTS AND REMEDIES

TERMINATION OF LEASE

ENFORCEABILITY OF LEASEHOLD COVENANTS