ntu_land law guidance text 2008-2009

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Land Law

GUIDANCE TEXT

2008

2009


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Land Law

Guidance Text

2008 Nottingham Law School Page 1

2008

2009

Notes on using this Guidance Text

The purpose of these guidance notes is to provide a link between the following:

Textbook - Roger Sextons Land law. This provides the primary resource to beused in supporting study on this module.

Online resource centre This contains selected extracts from primary sources andtwice-yearly updates to the provided textbook. Further details can be found on theback of the textbook (as above).

Casebook Maudsley & Burns Land law Cases & Materials. Statute book You may wish to purchase separately a statute book containing

legislation relevant to the module. Statute books can be taken into your

examination subject to detailed rules to be found in your student handbook. It isimportant to speak to your tutor before purchase. We suggest Blackstones Statuteson Property Law by Meryl Thomas.

The textbook is closely (although not exactly) tailored to our syllabus. It is written in apractical and accessible way by a very well respected (now retired) senior lecturer fromNottingham Trent University, Roger Sexton, who always had the students interests

uppermost in his mind and wrote accordingly. We hope that you enjoy the text andrecommend that you start at the front and work through it in order, unless you are advisedto do otherwise. Please note that there is a comprehensive index of commonly used legalterms at the back of the textbook, which you will almost certainly find useful.

The textbook contains many questions for you to attempt to answer as you work through

your studies. The answers to these questions are given either as you read on oralternatively at the back of the book. The more practice you have in answering these

questions, the more at ease you will feel with the subject.

You should read through the relevant chapters first and attempt to answer the questions as

you encounter them in the text, assessing your understanding with reference to theanswers provided. Then, try to provide answers to the questions contained in this guidancetext. If you have difficulty at any time, see the hint below the question for guidance as towhere to look to find the answer.

Whilst the textbook should be studied in depth, the casebook should be consulted whennecessary to elaborate on an area or to explain a difficult point. It is not necessary to read

the casebook from cover to cover. Having said that, it is an excellent and very wellrespected academic work.

As for cases and statutes, full details are not always included in these notes and where theyare not, full citations can be found at the front of the textbook and casebook. Extracts andfull statutes can be found in the statute book. Please note that the casebook should containmost of the important statutes needed and they will also be referred to in the text.

It is hoped that these notes will provide a link and an overview of the area covered by themodule and will show you the bigger picture so that you can relate one area to another andsee where the different elements fit in. Land law is a broad subject area which some

students find difficult. It needs to be studied carefully and conscientiously from the start so

that you get to grips with the material as soon as possible and begin to feel confident withthe subject, and are then able to build upon it.


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Guidance Text


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These notes do not contain the law. You are to find the law in the other reading material

that has been provided and is available to you. Gaps in the structure of these notes aredeliberate and are designed to allow you space to make notes, write page references, note

points of difficulty to be clarified and to more generally chart the pattern of your studies.

We hope that you enjoy your study of land law.

Tina Launchbury and Matthew J. Homewood


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MODULE STRUCTURE


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MODULE STRUCTURE

Concepts/terminology Unregistered land Registered land Trusts of land Co-ownership Easements Restrictive covenants Mortgages

Note: You may wish to have a look at, but need not study:

Old style trusts An understanding of the concepts of bare trusts, trusts for saleand strict settlements is all that is needed.

Adverse possession See loss of ownership. Again, an awareness of the conceptis all that is required. It should be recognised that an adverse possession claimagainst registered land is now almost impossible.

Special legal rules and priority of mortgages The focus should be onterminology, mortgagees remedies and the protection of a mortgage in registeredand unregistered title.

Commonhold You need to know the name, have an idea about the concept, butdo not need to know the detail.


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CONCEPTS AND TERMINOLOGY


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This is fundamental to your studies. Your understanding must be thorough to enable the

rest of the course to be built upon the framework set. You will become confused later if youdo not get to grips with this now.

Please note that we will deal with some areas in your list as a full topic later. You shouldstudy the introductory chapters only at the moment and not the later topic chapters.

You need to understand all of the following terms at an early stage. Remember that youcan find the answers in the textbook (glossary, index, case list, statute list and footnotes),

casebook (index, case list, statute list and footnotes) and the online resource centre. Hintsare provided (see below).

Consult the textbook and casebook and discover the meanings of the following terms:

Meaning of land

FreeholdHint : See s1 of the Law Property Act 1925 and the relevant sections in chapter 1, 3and the glossary of the textbook.

LeaseholdHint : See s1 of the Law Property Act 1925 and the relevant sections in chapters 1and 3 of the textbook.

LandHint : See s205 (1) (ix) of the Law Property Act 1925 and the relevant section in

chapter 1 of the textbook.

See Chapters 1, 2, 3, 4 and 5 of the textbook


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FixturesHint : See the relevant section in chapter 1 of the textbook and consider the relevant

case law in the casebook.

FittingsHint : See the relevant section in chapter 1 of the textbook and consider the relevantcase law in the casebook.

ChattelsHint : See the relevant section in chapter 1 of the textbook and consider the relevantcase law in the casebook.

Rights against land

MortgageHint : See section 1 of the Law of Property Act 1925 and the relevant sections inboth chapter 1 and the glossary of the textbook.

MortgagorHint : See the relevant section in chapter 1 of the textbook.


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MortgageeHint : See the relevant section in chapter 1 of the textbook.

Restrictive covenantHint : See section 1 of the Law of Property Act 1925 and the relevant section in both

chapter 1 and the glossary of the textbook.

EasementsHint : See section 1 of the Law of Property Act 1925 and the relevant section in bothchapter 1 and the glossary of the textbook.

ProfitsHint : See section 1 of the Law of Property Act 1925 and the relevant sections inboth chapter 1 and the glossary of the textbook.

RentchargesHint : See section 1 of the Law of Property Act 1925, Rentcharges Act 1977 and therelevant section in both chapter 1 and the glossary of the textbook.


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Constructive trustHint : See the relevant section in both chapter 1 and the glossary of the textbookand Lloyds Bank v Rosset[1991] 1 AC 107.

Proprietary estoppelHint : See the relevant section in both chapter 1 and the glossary of the textbookand Inwards v Baker[1965] 1 All ER 446.

Matrimonial home rightsHint : See Family Law Act 1996 and the relevant section in both chapter 1 and theglossary of the textbook.

Estate contractsHint : See the relevant section in both chapter 1 and the glossary of the textbook.

OptionsHint : See the relevant section in both chapter 1 and the glossary of the textbook.


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Trusts

TrustHint : See the Trusts of Land and Appointment of Trustees Act 1996 and the relevant

section in chapter 2 of the textbook.

SettlementHint : See the relevant section in chapter 2 of the textbook.

Bare trustHint : See the relevant section in chapter 2 of the textbook.

Trust for saleHint : See the relevant section in chapter 2 of the textbook.

Trust of landHint : See the relevant section in chapter 2 of the textbook.


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Conveyancing Procedure

Proof of title rootHint : See the relevant section in chapter 2 of the textbook.

DeedsHint : See section 1 of the Law of Property (Miscellaneous Provisions) Act 1989,

section 52 of the Law of Property Act 1925 and the relevant section in chapter 2 ofthe textbook.

Title in registered landHint : See the Land Registration Act 2002 and the relevant section in chapter 2 ofthe textbook.

Voluntary registrationHint : See the relevant section in chapter 2 of the textbook.

Commonhold (concept only)Hint : See the Commonhold and Leasehold Reform Act 2002 and the relevant sectionin chapter 3 of the textbook.


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Estate in possessionHint : See the relevant section in chapter 4 of the textbook.

Estate in remainderHint : See the relevant section in chapter 4 of the textbook.

Estate in reversionHint : See the relevant section in chapter 4 of the textbook.

Legal estatesHint : See section 1 of the Law of Property Act 1925.

Legal interestsHint : See section of the 1 Law of Property Act 1925 and the relevant section in



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Equitable interestsHint : See section 1 of the Law of Property Act 1925 and the relevant section in


A deedHint : See section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 andthe relevant section in chapter 5 of the textbook.

Requirements for a deedHint : See section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 andthe relevant section in chapter 5 of the textbook.

Exchange of contractsHint : See the relevant section in chapter 5 of the textbook.


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When you feel that you understand the above, prepare yourself a table/flowchart/list/mind-map or whatever helps you to retain this information in a logical format.

By now, you should be more familiar with the materials provided and should be able to deal

with the concepts in some depth from now on. The concepts/terms will be revisitedfrequently, so dont worry if they still seem a little strange to you.

AdviceGoing forward, look at the questions asked in each section first and then study the relevantchapters in the textbook. As you work through the relevant chapters, attempt thequestions you encounter and assess your understanding with reference to the answersprovided. Then, try to provide answers to the questions contained in this guidance text. Ifyou have difficulty at any time, see the hint below the question for guidance as to where tolook to find the answer. When you are happy that you understand the relevant area and

can answer the questions, move on to the casebook and online resource centre to bothconsolidate and develop your understanding further.


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UNREGISTERED LAND


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UNREGISTERED LAND

The unregistered land system is based upon the doctrine of notice and land charges. Theseare mutually exclusive and are not alternatives. Consider this statement carefully as you gothrough the following:

What is meant by the doctrine of notice?Hint : See the relevant section in chapter 6 of the textbook.

What are the three types of notice?1.

2.

3.

Hint : See the relevant section in chapter 6 of the textbook. Be careful not toconfuse the types of notice with a notice as used in registered land to protect

certain minor interests.

Which is the most difficult to prove and why?Hint : See the relevant section in chapter 6 of the textbook.

See Chapters 6, 7 and 8 of the textbook


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Which case would you use to illustrate notice?Hint : It involves a surveyors inspection of a property. If you need a little help, it is

mentioned in the section on notice in chapter 6 of the textbook and further detailscan be found in your casebook.

What does bona fide purchaser for value without notice mean?Hint : See the relevant section in chapter 6 of the textbook.

Explain its importance.Hint : See the relevant section in chapter 6 of the textbook.

Explain the rule in Hunt v Luck.Hint : See the relevant section in chapter 6 of the textbook.


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UNREGISTERED LAND


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Explain the test(s) for constructive trusts. Which case gave you this test?(Important).

Hint : The case involved a wife helping with interior decorations and chasing upbuilders. If you need a little help, it is mentioned in chapter 1 of the textbook in the

section relating to constructive trusts. Further details can be found in yourcasebook.


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UNREGISTERED LAND


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Which 1925 statute limited the application of the doctrine of notice?Hint: See the relevant section in chapter 8 of the textbook.

What year is given to that Act now?Hint: See the relevant section in chapter 8 of the textbook.

Why is the doctrine of notice still relevant today? List 8 instances wherenotice is still important.

1.2.3.4.5.6.7.8.

Hint: If you are struggling with this, look towards the end of chapter 8 of thetextbook.


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UNREGISTERED LAND


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What is the land charges register? Where is it kept? How are registrationsof land charges made?

Hint: See the relevant section in chapter 8 of the textbook.

Give examples of land charge categories.Hint: See the relevant section in chapter 8 of the textbook.

Explain how a land charge search works.Hint: See the relevant section in chapter 8 of the textbook.

Explain overreaching. (This can be left until later if you find this difficult).Hint: If you are finding this difficult look towards the end of chapter 8 of the textbook

and concentrate on the essence of overreaching to enable you to understand thebasic concept.

Why are notice and land charges mutually exclusive? What happens if youforget to register a land charge or do it incorrectly? (This is a fundamentalpoint that many students have problems with).

Hint: See section 198 of the Law of Property Act 1925, the relevant section in

chapter 8 of the textbook and consider the cases ofHollington Brothers v Rhodes(1951) 2 TLR 691 and Midland Bank Trust Co. v Green [1981] AC 513.


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UNREGISTERED LAND


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Back up your statements with authority (i.e. cases and/or statutes) as appropriate.

At the end of the chapters addressing unregistered land you will encounter a comprehensive

assessment exercise. It is recommended that you tackle this in essay style beforeconsidering the answer provided in the appendix. This will help you to develop theapproach needed for problem questions of this type and will enable you to assess not only

your understanding of this area, but also your written style.

When you feel that you understand unregistered land, prepare yourself a table/flowchart/list/mind-map or whatever helps you to retain this information in a logical format.

AdviceAs before, going forward look at the questions asked in each section first and then study therelevant chapters in the textbook. When you are happy that you understand the textbook

and can answer the questions, move on to the relevant areas in the casebook and onlineresource centre to both consolidate and develop your understanding further.


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REGISTERED LAND


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REGISTERED LAND

For most purposes, the registered land system divides rights into four categories; thoseestates and interests capable of substantive registration, overriding interests, minorinterests and mortgages by registered charge.

Answer the following questions:

Which statute introduced the system of land registration?Hint: See the relevant section in chapter 9 of the textbook. As you read through thebeginning of this chapter, be aware of the date of the Act referred to.

When did the whole of England and Wales become compulsorilyregisterable?


Carefully explain the following:

1. Substantive registration.

2. Overriding interests.

3. Minor interests.

Hint: See the relevant sections in chapter 9 and chapter 10 of the textbook.

See Chapters 9 and 10 of the textbook


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REGISTERED LAND


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Give examples of the above 3 categories and state how they can beprotected.

1. Substantive registration.

2. Overriding interests.

3. Minor interests.

Hint: If you are finding this difficult, chapter 9 of the textbook contains details onsubstantive registration whilst the summary at the end of chapter 10 may also be ofhelp.

Describe, briefly, the main points of the Land Registration Act 2002. (Thiswill be dealt with as we go along). When was its implementation date?What aspects were unexpected?

Hint: See the relevant section in chapter 10 of the textbook. You obviously need tobe aware of the main points of the previous Act in order to fully appreciate the

changes made by the 2002 Act.


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REGISTERED LAND


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Explain the difference between First registration and registration of adealing.



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REGISTERED LAND


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When does title belong to a new owner? Consider this for both unregisteredand (already) registered land.


Explain the types of registration for leasehold and freehold land.Hint: See the relevant section in chapter 9 of the textbook.

Name and describe the 3 parts of a register of title.Hint: See the relevant section in chapter 9 of the textbook. Useful information and

accessible guidance can also be found at the land registrys website

(www.landregistry.gov.uk).


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REGISTERED LAND


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Registration of easements is now difficult. We will return to this later, butdo you understand the effect of the Land Registration Act 2002 on

easements?

Hint: If not, see section 27(2)(d) of the Land Registration Act 2002 and the relevant


Why are old cases still relevant for actual occupation and overridinginterests? Give examples and explain principles.

Hint: See the relevant section in chapter 10 of the textbook and read the casesreferred to in your casebook. In particular, read Williams and Glyns Bank v Boland

[1981] AC 487, Lord Olivers speech inAbbey National Building Society v Cann

[1991] AC 56 and Webb v Pollmount[1966] 1 CH 584.


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REGISTERED LAND


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Why is Schedule 3 paragraph 2 of the Land Registration Act 2002 differentin effect to section 70(1)(g) of the Land Registration Act 1925? Please note

that this is a very important (and quite difficult) point. You need tocarefully consider the exceptions.

Hint: See the relevant section in chapter 10 of the textbook. Also, considerFerrishurst v Wallcite [1999] 1 All ER 977 under section 70(1)(g) of the 1925 Act.

Do the exceptions bear any resemblance to the doctrine of notice?Hint: Reflect back on the relevant sections in chapter 6 of the textbook and consider

the Land Registration Act 2002 Sch.3 para.2. Further, consider Lord Wilberforcesjudgment in the House of Lords in Williams and Glyns Bank v Boland[1981] AC 487.

Does the 2002 Act improve the situation and if so, how?Hint: See the relevant section in chapter 10 of the textbook.


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How has the 2002 Act altered the protection of minor interests?Hint: See sections 32, 33 and 40 of the Land Registration Act 2002 and the relevant


Explain how a land registry search is done and its effect.Hint: See the relevant section in chapter 10 of the textbook. Further usefulinformation and accessible guidance can be found at the land registrys website(www.landregistry.gov.uk).


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Back up your statements with authority (i.e. cases and/or statutes) as appropriate.

When you are happy that you understand the textbook and can answer the questions, move

on to the relevant areas in the casebook and online resource centre to both consolidate anddevelop your understanding further.

At the end of the chapters addressing registered land you will encounter a furthercomprehensive assessment exercise. As with the exercise on unregistered land, it isrecommended that you tackle this in essay style before considering the answer provided inthe appendix.

You will find a useful flowchart preceding the assessment exercise in the textbook, whichcovers the operation of Schedule 3 paragraph 2 of the 2002 Act. You may wish toincorporate this into a much wider flowchart that deals with the whole of registered title.

Alternatively, please prepare yourself a table/ list/mind-map or whatever helps you to retainthis information in a logical format.

We will now move on to the specific topic areas to which you have already been introduced.

In the meantime, it is recommended that you consolidate what you have learnt so far andfill in any gaps in your knowledge.

ntu_land law guidance text 2008-2009

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