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Summary Land Law Problem Question notes GDL
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Problem question notes for Land Law ULAW Helped get a high distinction in the exam.
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Fixtures and Chattels:• Fixtures: anything attached to the land is a part of the land. Cannot be taken when a seller leaves their
house.
• Chattels: items that are not fixed to the land and so can be taken when the seller leaves.
• Test for determining if something is a fixture:
o The Degree of Annexation (Berkley v Poulett)
▪ This creations a presumption that if something is fixed/attached/bolted to the building, it
is a fixture. If it is moveable or resting on its own weight, then it is a chattel eg a statue; a
garden shed or greenhouse which can be dismantled (Elitestone Ltd v Morris); light
fittings, carpets, curtains and appliances (Botham v TSB Bank plc)
o The Purpose of Annexation Test (Leigh v Taylor)
▪ This asks: was the chattel put there to make the use of the chattel more convenient, or
was it put there to improve the property?
• The presumption created by the degree test can be rebutted by the purpose test
if the item forms a part of the architectural/landscaped design of the
house/garden (D’Eyncourt v Gregory)
• The second limb of this test is whether the fixture of the item is the only way that
item can fulfil its purpose (Leigh v Taylor) eg a wall hanging attached to the wall is
presumed a fixture under the degree test, but this is overruled by the purpose test,
which holds that it is a chattel because it is put there so it can be looked at and
enjoyed (Leigh v Taylor).
• Fixtures can only be transferred by conveyance, whereas chattels only need to be delivered to another
to transfer ownership. Anything that is a fixture on the date of a sale or mortgage is part of the
sold/mortgaged property, so cannot be removed without express permission.
Legal interests:
S1 of the Law of Property Act 1925:
(1) The only estates in land which are capable of subsisting or of being conveyed or created at law are:
(a) An estate in fee simple absolute in possession;
(b) A term of years absolute.
Freehold:
• This is recognised in S1(1)(a) of LPA 1925 and recognises that an estate in fee simple absolute in
possession is capable of existing at law.
o This means that it is one capable of being inherited. ‘fee simple’ is free to do what he wishes with
it. ‘absolute’ indicates that this estate is not conditional on anything.
o It is the equivalent to outright ownership of the estate.
Leasehold:
• This is identified in Section1(1)(b) of the LPA 1925 – identifies a term of years absolute.
• The tenant’s interest will last for the duration of the lease and may be sold, given away or inherited.
The tenant must have exclusive possession of the property for a fixed and certain duration.
The five interests which are capable of being legal interests are listed in s1(2) of the LPA 1925. Of these, the
following two are of importance:
, a) An easement, right or privilege in or over land for an interest equivalent to an estate in fee simple
absolute in possession or a term of years absolute (ie a right of land either leasehold or freehold)
b) A charge by way of legal mortgage (a mortgage is an interest in land given as security for a loan).
Formalities for legal interests/estates:
• Section 52 of the LPA 1925 sets out the general rule that a deed is required to create legal estates and
interests in land.
o However, there are some exceptions to this general rule contained in s52(2) of the LPA 1925. An
important one is the exception in s52(2)(d) – leases that are not required by law to be made in
writing. This is known as the parol lease exception. Section 54(2) of LPA describes such leases:
▪ A lease not exceeding three years, the lease can be granted without a deed and can even
be granted orally.
▪ First condition: lease must take effect immediately in possession.
▪ The second: lease must have been granted at the best rent which can be reasonably
obtained without taking a fine (ie making a prior lump sum).
Equitable interests:
Section 1(3) of the LPA: “All other estates, interests, and charges in or over land take effect as equitable
interests.”
There are two types of equitable interest:
• The rights of beneficiaries under a trust;
• Equitable interests in land where no trust is involved.
Trustee: holds legal ownership of the land and therefore has rights recognised at common law.
Beneficiary: has the equitable ownership of the land and therefore has rights recognised in equity.
Restrictive Covenants:
• Equitable interest where there is no trust.
• Promises by one party (‘the covenantor’) in favour of the other party (the ‘covenantee’) that the
covenantor will not use his land in a particular way.
o Eg will never carry out building work on the land without permission from X.
• Often created on a sale of part and are equitable interests.
• Only capable of being equitable: are usually created when land is sold.
o The sale of land requires there to be a deed, and as such restrictive covenants will usually be
contained in a deed as part of that sale transaction.
o The formalities required for a restrictive covenant are signed writing (LPA 1925, s53(1)9a)).
o A deed is not required to create a valid equitable interest, but a valid deed will automatically
comply with the requirements of signed writing; therefore, a restrictive covenant contained in a
deed is a valid equitable interest.
Estate contract:
• Equitable interest where there is no trust.
• A contract to create or convey a legal estate in the land.
• The buyer under the contract has an equitable interest in the land.
• Applying the equitable maxim, ‘equity sees that as done which ought to be done’ equity treats the
contract as having already been specifically enforced.
, o Therefore, the person with the benefit of the contract (the buyer) is seen as having an immediate
(equitable) interest in the land.
▪ For instance, between post-exchange and until the competition of the purchase, the buyer
holds an equitable interest in the estate contract.
▪ Option to purchase the property eg buy the land for £500,000 at any time in the next 12
months is an estate contract.
▪ Another estate contract is a contract to grant a lease. Equity will recognise the contract if
the granting of the lease does not use the correct formalities required to create a legal
lease.
• Formalities:
o The formalities for contracts relating to land that are entered into or after 27 Sep 1989 are
governed by s2 of the LP(MP)A 1989.
▪ Must be made in writing and only by incorporating all the terms which the parties have
expressly agreed in one document or, where contracts are exchanged, in each. (s.2(1)).
▪ The terms may be incorporated in a document either by being set out in it or by reference
to some other document. (s.2(2)).
▪ The document incorporating the terms or, where contracts are exchanged, one of the
documents incorporating them (but not necessarily the same one) must be signed by or
on behalf of each party to the contract. S.2(3).
• This section does not apply in relation to –
• S.2(5)(a) a contract to grant such a lease as is mentioned in s54(2) of the LPA 1925
(short leases);
• S.2(5)(b) a contract made in the course of a public action.
Easement:
• An easement for an uncertain period does not fall within s1(2) of the LPA 1925 and so is not capable of
being legal. It will, however, be recognised as an equitable easement if the formalities for creating
equitable interests that are not estate contracts are fulfilled.
Creation of Equitable interests (formalities):
Equitable interests under trusts:
• Express trusts over land must satisfy 53(1)(b) of the LPA 1925.
o The declaration of trust must be evidenced in writing and must be signed.
• Implied trusts:
o Can come into existence without the need for formalities s53(2).
o An implied trust arises automatically as a result of the property owner’s actions, eg where one
party makes a financial contribution to the purchase of property, which is not a gift or a loan, but
that party is not named as a legal owner. In this situation, the legal owner would hold the property
on trust for himself and the party who made the contribution.
Equitable interests where no trust is involved:
• All other equitable interests can be categorised as non-trust interests.
• The formalities required to create a purely equitable interest, eg restrictive covenant and easements for
uncertain period, and those required to create an estate contract, are different.
• The minimum formality requirement for the creation of equitable interests where no trust is involved is
that the interest be created by signed writing (LPA 1925, s53(1)(a)).
, o So, if an easement is granted for an uncertain period, that easement is not capable of being legal
under s1(2)(a) LPA 1925. As a result, it is only capable of being an equitable easement (LPA 1925,
s.1(3)). Therefore, the formalities required to create an equitable easement are that it should be
in writing, signed by the person creating it. (LPA 1925, s53(1)(A)).
o
Disposition of Equitable Interests:
• Any sale, gift or other disposition of an equitable interest must be in writing and signed by the parties to
the document (LPA 1925, s53(1)(c)).
Interest Legal Equitable
Mortgage A charge by way of legal mortgage is If the correct formalities for creating a legal
capable of being a legal interest (LPA mortgage have not been used then it is only
1925, s1(2)(c) capable of being equitable.
Restrictive Covenant A restrictive covenant can take effect as an
equitable interest only as it is not within s1(1)
or (2) of the LPA 1925.
Option to buy a An option to buy a freehold estate can take
freehold estate effect as an equitable interest only as it is not
within s1(1) or (2) of the LPA 1925.
Easement for a As this is an interest equivalent to a If the correct formalities for creating a legal
period of years eg 30 terms of years absolute, it is capable easement have not been used then it is only
years of being a legal interest LPA 1925, capable of being equitable.
s1(2)(a)
Beneficial interest A beneficial interest under a trust can take
under trust effect as an equitable interest only as it is not
included in s1(1) or (2) of the LPA 1925.
Easement forever As this is an interest equivalent to a If the correct formalities for creating a legal
fee simple absolute in possession, it easement have not been used then it is only
is capable of being a legal interest capable of being equitable.
LPA 1925, s1(2)(a)
Lease of 10 years This is capable of being a legal estate If the correct formalities for creating a legal
LPA 1925, s1(1)(b) estate have not been used then it is only
capable of being equitable.
Contract to sell a fee A contract to sell a fee simple absolute in
simple absolute in possession can take effect only as an
possession equitable interest as it is not included in
ss1(1)(2) of the LPA 1925.
Statute third party rights:
s.30 of the Family Law Act 1996.
Parliament has given the non-owning spouse certain rights (‘home rights’), principally a right of occupation
as against the other spouse. This right arises provided that:
a) The parties are legally married (not divorced);
b) The home is, has been or is intended to be the matrimonial home.
Extends to those in a civil partnership.
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