Common Professional Examination (CPE) Land Law (Property Law) Syllabus

What are the 'four unities' required for a joint tenancy (AG Securities / AG v Cuthbertson - the unities of possession, interest, title and time)?

Unity of Possession (each entitled to possess the whole); Unity of Interest (interests identical in nature, extent and duration); Unity of Title (all derive title from the same document); Unity of Time (all interests vest at the same time). A tenancy in common requires only unity of possession.

What is the doctrine of survivorship (ius accrescendi) and to which co-ownership form does it apply?

On the death of a joint tenant, their interest automatically accrues to the surviving joint tenant(s); it cannot pass by will or intestacy. It applies only to joint tenancies, not tenancies in common (where each holds a distinct, devisable share).

Can the LEGAL estate in co-owned land ever be held as a tenancy in common? Why or why not?

No. By ss.1(6) and 36(2) LPA 1925 a legal estate cannot be held as a tenancy in common; co-owners always hold the legal estate as joint tenants (max four, and it cannot be severed). Only the equitable/beneficial interest can be a tenancy in common.

List the methods of severing a beneficial joint tenancy in equity.

(1) Written notice under s.36(2) LPA 1925; (2) an act of a joint tenant operating on their own share (e.g. sale or mortgage of the share); (3) mutual agreement; (4) mutual conduct/a course of dealing showing intention to treat the tenancy as a tenancy in common; (5) by acquiring another co-owner's interest; also unlawful killing severs by forfeiture. See Williams v Hensman.

What are the requirements for a valid written notice of severance under s.36(2) LPA 1925?

The notice must show an immediate, irrevocable intention to sever now (not at a future date). It must be given to all other joint tenants. It need not be signed in any particular form and need not be agreed to. Service is governed by s.196 LPA 1925 (deemed served if left at the last known abode/posted, even if not actually read - Kinch v Bullard).

Following the abolition of the old trust for sale, what statute now imposes a 'trust of land' on all co-owned land, and what is its key feature?

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). All concurrent co-ownership now takes effect behind a trust of land. Trustees have all the powers of an absolute owner (s.6), there is no automatic duty to sell, and beneficiaries with an interest in possession have a right to occupy (ss.12-13).

Under s.14 TOLATA 1996, who may apply to the court and for what, and what factors guide the court (s.15)?

Any trustee or person with an interest in the trust property may apply for an order resolving disputes (e.g. an order for sale). Under s.15 the court considers: (a) the intentions of those who created the trust; (b) the purposes for which the property is held; (c) the welfare of any minor occupying or who might occupy as a home; and (d) the interests of any secured creditor.

How does the court approach an application for sale under s.14 TOLATA when made by a trustee in bankruptcy?

Section 335A Insolvency Act 1986 applies. After one year from the bankruptcy, the court assumes the interests of the creditors outweigh all other considerations unless the circumstances are 'exceptional'. Ordinary hardship to the family is not exceptional (Re Citro).

What is a 'resulting trust' of the family home and how is the beneficial share quantified under it?

A resulting trust arises where a person contributes to the purchase price but is not on the legal title; equity presumes they intended a beneficial share proportionate to their direct financial contribution to the purchase. Shares are fixed at the time of acquisition strictly by arithmetic contribution.

Following Stack v Dowden and Jones v Kernott, how is the beneficial interest in a jointly-owned family home (legal joint tenants) approached?

Equity follows the law: there is a strong presumption of a beneficial joint tenancy (equal shares). This can be displaced by showing a common intention that shares should be different, found from the parties' whole course of dealing. If a different intention is shown but no quantification, the court imputes a fair share having regard to the whole course of conduct.

What are the two ways to establish a common intention CONSTRUCTIVE trust under Lloyds Bank v Rosset (sole legal owner cases)?

(1) An express agreement, arrangement or understanding that the claimant should have a beneficial interest, on which the claimant relied to their detriment; or (2) in the absence of express agreement, an inferred common intention from direct financial contributions to the purchase price or mortgage instalments (and detrimental reliance).

What three elements must a claimant prove to establish a constructive trust based on common intention?

(1) A common intention (express or inferred) that the claimant has a beneficial interest; (2) detrimental reliance by the claimant on that common intention; and (3) it would be unconscionable to deny the claimant a share. Quantification then follows (Stack/Jones whole-course-of-dealing).

What are the four essential characteristics of an easement laid down in Re Ellenborough Park [1956]?

(1) There must be a dominant and a servient tenement; (2) the easement must accommodate (benefit) the dominant tenement; (3) the dominant and servient tenements must be owned/occupied by different persons; and (4) the right must be capable of forming the subject matter of a grant (capable of definition, a capable grantor/grantee, and within the general nature of recognised easements).

Why does an easement fail the 'capable of forming the subject matter of a grant' test if it amounts to exclusive/joint use ousting the servient owner?

An easement must not be so extensive as to leave the servient owner without any reasonable use of their land (the 'ouster' principle). A claim amounting to exclusive possession or joint use depriving the owner of reasonable use cannot be an easement (Copeland v Greenhalf; cf. Batchelor v Marlow; Moncrieff v Jamieson).

List the methods by which an easement may be created.

(1) Express grant or reservation (in a deed/registered disposition); (2) implied grant or reservation by necessity; (3) implied by common intention; (4) implied under the rule in Wheeldon v Burrows; (5) implied by statute under s.62 LPA 1925; and (6) by prescription (long use).

State the rule in Wheeldon v Burrows for the implied grant of easements.

On the sale of part of land, the buyer impliedly acquires as easements all quasi-easements which were (1) continuous and apparent, and/or (2) necessary for the reasonable enjoyment of the land sold, and which were (3) used by the common owner for the benefit of the part sold at the time of the grant.

How can s.62 LPA 1925 operate to create new legal easements on a conveyance?

Section 62 implies into a conveyance all liberties, privileges, easements, rights and advantages appertaining to the land. It can upgrade a mere licence or precarious permission enjoyed before the conveyance into a full legal easement, provided there was prior diversity of occupation (or, per Wood v Waddington, a continuous and apparent use).

What are the three methods of acquiring an easement by prescription, and the common requirement?

(1) Prescription at common law (use since time immemorial - 1189); (2) the doctrine of lost modern grant; and (3) the Prescription Act 1832 (20 or 40 years). All require use as of right - 'nec vi, nec clam, nec precario' (without force, without secrecy, without permission).

What is the running of the BURDEN of a restrictive (negative) freehold covenant in equity - state the rule in Tulk v Moxhay.

The burden of a restrictive covenant runs in equity if: (1) the covenant is negative/restrictive in substance; (2) it touches and concerns/benefits the covenantee's retained land; (3) it was made with the intention that the burden run with the servient land (presumed by s.79 LPA 1925); and (4) the purchaser of the servient land had notice (registration as a Class D(ii) land charge / notice on the register).

Why does the BURDEN of a POSITIVE freehold covenant not run with the land at law or in equity, and name a device used to circumvent this.

At law a covenant burden does not pass to successors (Austerberry v Oldham; Rhone v Stephens), and Tulk v Moxhay only applies to negative covenants. Devices to circumvent: chains of indemnity covenants; the benefit-and-burden principle (Halsall v Brand); a right of re-entry/rentcharge; a long lease; or commonhold/s.121 LPA mechanisms.

How may the BENEFIT of a freehold covenant pass at law to a successor of the covenantee?

At law the benefit runs if: (1) the covenant touches and concerns the land of the covenantee; (2) the covenantee held a legal estate in the benefited land; (3) the successor holds a legal estate (s.78 LPA 1925); and (4) there was intention for the benefit to run (presumed by s.78). Smith v River Douglas Catchment Board.

In equity, what are the three methods by which the BENEFIT of a restrictive covenant may pass to a successor?

(1) Annexation (express, or statutory under s.78 LPA 1925 per Federated Homes); (2) express assignment of the benefit with the land; and (3) a building scheme/scheme of development (Elliston v Reece, where mutual covenants bind a defined estate of plots).

What is the difference between a legal mortgage of registered land and the historic method, under the LPA 1925 and LRA 2002?

Historically a mortgage was by demise (a long lease) or by charge by way of legal mortgage. Under s.23 LRA 2002, the only method of legally mortgaging a registered estate is a 'charge by way of legal mortgage', completed by registration. The chargee gets the same protection as if granted a 3000-year lease.

What is the 'equity of redemption' and the rule against 'clogs and fetters' on it?

The equity of redemption is the mortgagor's residual ownership and right to redeem (recover the property free of the mortgage) on repayment, even after the legal contractual date has passed. Equity prevents any 'clog or fetter' on this right: terms that make redemption illusory, oppressive/unconscionable, or postpone redemption unreasonably may be struck down (Fairclough v Swan Brewery; cf. Knightsbridge Estates).

List the principal remedies available to a legal mortgagee on the mortgagor's default.

(1) Action on the personal covenant to repay (debt); (2) possession of the property; (3) sale (s.101 LPA 1925, exercisable when the power has arisen and become exercisable); (4) appointment of a receiver; and (5) foreclosure (now very rare).

When does a mortgagee's POWER OF SALE arise and when does it become EXERCISABLE under ss.101 and 103 LPA 1925?

The power of sale ARISES (s.101) when: the mortgage is by deed, the legal redemption date has passed, and there is no contrary intention. It becomes EXERCISABLE (s.103) when one of: (i) notice to repay served and 3 months' default; (ii) interest is 2 months in arrears; or (iii) breach of another mortgage provision.

What duties does a mortgagee owe when exercising the power of sale?

The mortgagee may choose its own timing but, once it decides to sell, must act in good faith and take reasonable care to obtain the true market value/proper price of the property at the date of sale (Cuckmere Brick v Mutual Finance). Proceeds are applied: costs of sale, then prior mortgages, then the selling mortgagee's debt, with any surplus held on trust for the next mortgagee/mortgagor.

What is a 'licence coupled with an interest' and is it revocable?

A licence coupled with a recognised proprietary interest (e.g. a profit à prendre or right to remove timber) granting the right to enter to enjoy that interest. It is irrevocable for as long as the interest subsists, is assignable with the interest, and binds third parties because of the proprietary interest it accompanies.

What are the five elements required to establish proprietary estoppel?

(1) An assurance or representation by the owner that the claimant has or will acquire a right in the land; (2) reliance by the claimant on that assurance; (3) detriment suffered as a result of the reliance; and then (4) it would be unconscionable for the owner to go back on the assurance (Thorner v Major; Gillett v Holt). The court then satisfies the equity with an appropriate remedy.

How does the court satisfy the equity arising from proprietary estoppel, and what is the guiding principle?

The court has a wide discretion to award the minimum remedy necessary to do justice / satisfy the equity, which is geared to avoid an unconscionable result and may be proportionate to the detriment suffered. Remedies range from transfer of the fee simple, to a lease/licence, an easement, a charge, or monetary compensation (Jennings v Rice; Guest v Guest).

Distinguish the three main ways a lease may be terminated.

(1) Effluxion of time (a fixed term simply expires); (2) notice to quit (for periodic tenancies, generally one full period's notice); (3) surrender (tenant yields the lease to the landlord) or merger (lease and reversion vest in one person); and (4) forfeiture (landlord re-enters for breach of covenant, requiring a forfeiture clause/right of re-entry).

What procedural steps must a landlord take to forfeit a lease for breach of a covenant OTHER than non-payment of rent, and what relief is available to the tenant?

Under s.146 LPA 1925 the landlord must serve a notice (i) specifying the breach, (ii) requiring it to be remedied if capable of remedy, and (iii) requiring compensation if demanded; and allow a reasonable time before re-entering. The tenant may apply for relief from forfeiture, which the court may grant on terms (typically remedying the breach and paying costs). Note s.146 does not apply to non-payment of rent.