Graduate Diploma in Law (GDL) Land Law Syllabus

What is the legal significance of an item being classified as a fixture rather than a chattel?

Fixtures form part of the land and pass automatically with a conveyance or mortgage of the land ('quicquid plantatur solo, solo cedit'), whereas chattels remain personal property and do not pass with the land unless separately included.

What is the distinction between 'real property' and 'personal property' historically?

Real property (realty) is freehold land, recoverable by a 'real action' for the land itself. Personal property (personalty) covers chattels and, anomalously, leaseholds ('chattels real'), historically recoverable only by an action for damages, not the thing itself.

Why are leaseholds classified as 'chattels real' rather than realty?

For historical reasons leasehold interests were not protected by the old real actions and so fell within personal property, yet they concern land; they are therefore a hybrid category called 'chattels real'.

What are the FOUR unities required for a joint tenancy (AG Securities v Vaughan / classic land law)?

The four unities: (1) Possession — each entitled to possession of the whole; (2) Interest — interests identical in nature, extent and duration; (3) Title — derived from the same document; and (4) Time — interests vested at the same moment.

What is the key feature distinguishing a joint tenancy from a tenancy in common?

The right of survivorship (jus accrescendi): on the death of a joint tenant, their interest passes automatically to the surviving joint tenants and cannot be left by will. A tenancy in common has distinct (undivided) shares that pass under the deceased's estate.

How is the legal estate always held where land is co-owned?

The legal estate must always be held as a joint tenancy and can never be severed (LPA 1925 ss.1(6), 36(2)). A maximum of four legal owners hold it, as trustees, for the beneficiaries who may be joint tenants or tenants in common in equity.

In equity, what 'words of severance' or circumstances point to a tenancy in common rather than a joint tenancy?

Words indicating distinct shares ('in equal shares', 'to be divided between', 'equally'); unequal contributions to the purchase price; partnership/business assets; and loans on mortgage (joint mortgagees presumed tenants in common in equity).

State the methods of severing an equitable joint tenancy.

Under LPA 1925 s.36(2): written notice to the other joint tenants. At common law (Williams v Hensman): (1) an act of a joint tenant operating on their own share (e.g. sale, mortgage); (2) mutual agreement; and (3) a course of dealing showing all treated the tenancy as a tenancy in common. Also by unlawful killing, bankruptcy.

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

It must be in writing, show an immediate intention to sever the joint tenancy in equity, and be served on all other joint tenants. It need not be signed and takes effect on deemed receipt (s.196 — e.g. Re 88 Berkeley Road: left at the house counts even if the sender received it back).

What does a 'trust of land' mean under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)?

Any trust of property which consists of or includes land. Since 1 January 1997 all co-ownership and successive interests in land take effect behind a trust of land (replacing the trust for sale and the Settled Land Act regime).

What powers do trustees of land have under TOLATA 1996 s.6?

They have all the powers of an absolute owner in relation to the land, including powers to sell, lease, mortgage and purchase land, subject to any restriction and to a duty to have regard to the rights of the beneficiaries.

What factors must a court consider on an application for sale or other order under TOLATA 1996 s.14, per s.15?

s.15 factors: (a) the intentions of those who created the trust; (b) the purposes for which the property is held; (c) the welfare of any minor who occupies or might occupy the land as a home; and (d) the interests of any secured creditor of any beneficiary.

What right of occupation does a beneficiary have under TOLATA 1996 s.12?

A beneficiary beneficially entitled to an interest in possession has the right to occupy the land if the purposes of the trust include making the land available for occupation, or the land is held by the trustees so as to be available — subject to trustees' powers to regulate occupation under s.13.

What is overreaching and what are its conditions (LPA 1925 ss.2 and 27)?

Overreaching detaches beneficiaries' equitable interests from the land and transfers them to the purchase money, so the buyer takes free of them. It requires a conveyance by trustees of land where the capital money is paid to at least two trustees or a trust corporation.

What did City of London Building Society v Flegg decide about overreaching and actual occupation?

Where capital money is paid to two trustees, the beneficiaries' interests are overreached and transferred to the proceeds even if the beneficiaries are in actual occupation; overreaching defeats what would otherwise be an overriding interest.

What is a resulting trust of the family home and when does it arise?

A resulting trust arises where a person contributes directly to the purchase price of property held in another's name; equity presumes they intended to take a beneficial share proportionate to their contribution (subject to rebuttal). Largely displaced by constructive trusts in the domestic context (Stack v Dowden).

What is the starting presumption for beneficial ownership where a family home is conveyed into joint names (Stack v Dowden; Jones v Kernott)?

Equity follows the law: joint legal owners are presumed to be joint tenants in equity (equal beneficial shares). This presumption can be rebutted by evidence of a common intention that shares should be different, judged by the whole course of dealing.

How is a common intention constructive trust established in a SOLE name case (Lloyds Bank v Rosset)?

The claimant must show: (1) a common intention to share beneficially — either an express agreement/arrangement plus detrimental reliance, OR inferred from direct financial contributions to the purchase price/mortgage; and (2) detrimental reliance on that intention.

In Jones v Kernott, how does the court quantify shares once a common intention constructive trust is established but the parties' intention as to quantum is unclear?

The court determines the share each is entitled to by inferring their actual intention from the whole course of dealing; if that is impossible, the court imputes the share it considers fair having regard to the whole course of dealing in relation to the property.

What are the elements of proprietary estoppel (Thorner v Major)?

(1) A representation or assurance made to the claimant (that they have or will have an interest in the land); (2) reliance on that assurance by the claimant; and (3) detriment suffered as a result. It must be unconscionable for the assurance to be denied.

How does the court satisfy an established equity in proprietary estoppel (Jennings v Rice)?

The court has a wide discretion to satisfy the minimum equity to do justice, which must be proportionate to the detriment suffered. Remedies range from a transfer of the fee simple or a lease, to an easement, occupation rights, or merely monetary compensation.

Distinguish proprietary estoppel from a common intention constructive trust.

Estoppel: based on an assurance + reliance + detriment, gives a discretionary remedy proportionate to detriment, and may yield no proprietary interest. Constructive trust: based on common intention + detrimental reliance, gives an actual beneficial share quantified by the parties' intentions.

What are the three essential characteristics of a lease (Street v Mountford)?

(1) Exclusive possession; (2) for a fixed or periodic term (certainty of duration); and (3) at a rent (though rent is not strictly essential under s.205 LPA). The label the parties use is not decisive — substance governs.

What did Street v Mountford establish about the lease/licence distinction?

If a person is granted exclusive possession of land for a term at a rent, the agreement is a lease (tenancy) regardless of the parties calling it a licence; the court looks at the substance, not the label. A licence is merely personal permission conferring no estate in land.

What is the requirement of 'certainty of term' for a lease (Lace v Chantler; Prudential Assurance v London Residuary Body)?

A lease must have a certain maximum duration ascertainable at the outset (or in the case of a periodic tenancy, terminable by notice). A lease 'for the duration of the war' or otherwise of uncertain maximum duration is void at common law.

What is the difference between a legal lease and an equitable lease, and the rule in Walsh v Lonsdale?

A legal lease over 3 years requires a deed (and registration if over 7 years). An equitable lease arises from a specifically enforceable contract for a lease (s.2 LP(MP)A 1989). Walsh v Lonsdale: equity treats the agreement as a lease on its agreed terms ('an agreement for a lease is as good as a lease') as between the parties.

What is the difference between a 'tenant covenant' running under privity of estate and the position under the Landlord and Tenant (Covenants) Act 1995?

For leases granted on/after 1 Jan 1996, tenant and landlord covenants (other than personal ones) automatically pass on assignment; the original tenant is released on a lawful assignment (subject to an Authorised Guarantee Agreement). For pre-1996 leases, only covenants 'touching and concerning' the land run under Spencer's Case / privity of estate.

What are the four essential characteristics of an easement (Re Ellenborough Park)?

(1) There must be a dominant and a servient tenement; (2) the easement must accommodate (benefit) the dominant tenement; (3) the dominant and servient owners must be different persons; and (4) the right must be capable of forming the subject matter of a grant (sufficiently definite, within the general nature of recognised easements).

How can an easement be acquired by implied grant — list the methods.

(1) Easements of necessity; (2) easements of common/intended use; (3) the rule in Wheeldon v Burrows (quasi-easements that are continuous and apparent, necessary to reasonable enjoyment, used at the time of grant); and (4) s.62 LPA 1925 (which can upgrade prior licences/privileges into easements on conveyance).

What is prescription and what are the three methods of acquiring an easement by long use?

Prescription presumes a grant from long use 'as of right' (without force, secrecy or permission — nec vi, nec clam, nec precario). The three methods: (1) common law prescription (since 1189); (2) lost modern grant; and (3) the Prescription Act 1832 (20 or 40 years).

What is the rule in Tulk v Moxhay for restrictive covenants to run in equity with the burdened land?

The burden of a restrictive (negative) covenant runs in equity if: (1) the covenant is negative in substance; (2) it touches and concerns/benefits the covenantee's retained land; (3) it was intended to run with the servient land; and (4) the buyer has notice (now: registration as a 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 what is one device used to circumvent this?

The burden of a positive covenant does not run (Austerberry v Oldham; Rhone v Stephens) because equity will not compel a person to put their hand in their pocket. Devices to circumvent include: chains of indemnity covenants, the benefit-and-burden principle (Halsall v Brizell), commonhold, and rights of re-entry.

How can the benefit of a freehold covenant pass to a successor at law and in equity?

At law (Smith & Snipes Hall Farm v River Douglas): the covenant must touch and concern the land, the claimant must hold the legal estate, and the benefit must be intended to run (s.78 LPA). In equity, the benefit passes by (1) annexation, (2) assignment, or (3) a building scheme.

What is the equity of redemption and the maxim 'once a mortgage, always a mortgage'?

The equity of redemption is the mortgagor's totality of rights in the property, including the equitable right to redeem on repayment. Equity protects this right: any clause or 'clog/fetter' that prevents or unduly postpones redemption (or is unconscionable) is void.

How is a legal mortgage of registered land created, and how is it protected?

By a charge by way of legal mortgage (the only permitted method for registered land, s.23 LRA 2002), executed by deed and completed by registration in the Charges Register. Until registered it takes effect only in equity.

What are a legal mortgagee's principal remedies on the borrower's default?

(1) Sue on the personal covenant to repay; (2) take possession; (3) sale (under LPA 1925 s.101, exercisable when the power has arisen and become exercisable); (4) appoint a receiver; and (5) foreclosure (now rare).

When does a mortgagee's power of sale ARISE and when does it become EXERCISABLE under the LPA 1925?

It ARISES where the mortgage is by deed and the legal date for redemption has passed (s.101). It becomes EXERCISABLE (s.103) when: notice to repay has been served and 3 months' default has elapsed; OR interest is 2 months in arrears; OR there is a breach of another mortgage provision.

What duty does a mortgagee owe when exercising the power of sale (Cuckmere Brick v Mutual Finance)?

The mortgagee may choose its own time to sell but, once it does sell, must take reasonable care to obtain the true market value (a proper/best price reasonably obtainable). It is not a trustee of the power of sale for the mortgagor but owes this duty in equity.

How are sale proceeds distributed by a mortgagee under LPA 1925 s.105?

The mortgagee holds the proceeds on trust to apply them: (1) in discharging prior incumbrances (if sold subject to them, this is omitted); (2) costs and expenses of sale; (3) the mortgage debt, interest and costs; and (4) the surplus to the next mortgagee or the mortgagor.

What protection does a residential mortgagor have against a possession action under s.36 Administration of Justice Act 1970?

Where a dwelling-house is mortgaged, the court has discretion to adjourn, stay, suspend or postpone possession if it appears the mortgagor is likely to be able to pay any sums due (including arrears) within a reasonable period — generally treated as the remaining term of the mortgage (Cheltenham & Gloucester v Norgan).