Assignment on Law of Property Act 1925

Issues
Angelina, a film star, was the owner of a big house with a large grounds. Her profession
made her so busy that she could not maintain the grounds and decided to sell them. She sell a
portion of her grounds to Brad. In the agreement she holds the right of an easement that
connected her to the main road through Brad land. However, due to her business she could not
carry out any legal action for easement. Angelina made an agreement during the transfer of the
property to Brad with a purpose of getting a tranquil surrounding. The covenant was made and
included the following points:
 Not to let the fence parting the properties to suffer disrepair
 Not to own dogs
 Not to carry a business form the buildings
Brad lend a loan to make a house with an agreement with Windfall Bank. If he redeems
the loan he will have to pay 20% premium on usual repayment terms.
(a) Angelina moved to Los Angeles and sold her house to Jenifer. When Brad moved to her
house he violates the agreement by:
 Bringing five Danes
 Applying for permission to start breeding Dane dogs
 Left the fence unrepaired after a strong wind
(b) Brad also puts a close door at the easement that was reserved by Angelina.
Jennifer is upset due to all these violations by Brad.

(c) Jennifer seems to be a difficult neighbour for Brad so he decided to redeem the mortgage and
wants to avoid the premium.
Rules
(a) Section 78(1) of the “Law of Property Act 1925” suggests that any agreement produced after
the time when property act of 1925 was enforced, it was effective from January 1st 1926 onwards
and the advantages was envisioned to run to successors of the covenant 1. The fact that the Act of
1925 clearly states that the future owner must continue to get the benefits of the covenant is a
strong point in the favour of Jennifer. If any agreement is made in the post 1926 era, it will run
the benefits of the contract to the future owner until and unless that covenant clearly mentions
that the benefits of the covenant should not be transferred to the successors2.
List of methods for Creation of easement: An easement can be created by
 Express grant
 Easement by Reservation.
 Easement by Implication
Type of easement existing at the back route to the airport: this is an easement created by the
express grant. This occur when the owner with servient tenement gives the easements in actual
manner to the owner of the dominant tenement. This exist where one party expressly transfer the
easement to another party. Here Brad pass the easement to Angelina under implied easement.
1
? McFarlane, Ben, Nicholas Hopkins, and Sarah Nield. Land law: text, cases, and materials.
Oxford University Press, USA, 2015.
2
? Jackson, Paul, and David C. Wilde. The reform of property law. Routledge, 2018.

Existence of direct easement: As there in expressed term entered into the contract of
sale is not an easement through express grant but an easement is necessary so implied one is
created. Implied easements are generally associated with land which has been subdivided, and
has been sold or leased without an express easement. This can be created through general words
imported in conveyance, easement of necessity, common intention, implication derived from
description of the land.
Enforcement of easement: in case of implied easement if the owner of dominant
tenement wish to increase the burden on the servinent tenement, the remedy can be sought as
getting an injunction, amount of nuisance due ot use of the easement, issues created for barring
the use of easement.
(b) “The Countryside & Rights of Way Act 2000”, which is also called CRoW act, is an act that
was issued by the parliaments of England and Wales, which became effective from November
30th, 2000. This act states that any way or easement that is reserved by the property owned for a
specific purpose in the initial covenant will run to the successors of that property3. The property
owner or any successor to the property can use the easement for the same purpose for which it
was defined in the first agreement. The owner or any successor of the land through which the
easement is passing cannot block the easement without any legal action. Jennifer is using this for
the same purpose for which Angelina used the easement so Brad has no right to put a closed gate
on the easement.
Requirement of creation of restrictive covenant:
3
? Walsh, Emily. "Public versus private land use controls in England and the USA." International
Journal of Law in the Built Environment 9, no. 1 (2017): 18-31.

A covenant is a type of contractual agreement, the provision that limits the use of
property and prohibits the certain used of the property. Such clauses are termed as restrictive
covenants. Theses are required for allowing the surrounding property owners to have similar
deeds and to enforce the terms in court of law. These have intention to enhance the values of
property by controlling the development. This is a promise not to do anything on the land for the
benefit of other.
Covenant created by Angelina and Brad:
1. Not to let the fence parting the properties to suffer disrepair
2. Not to own dogs
3. Not to carry a business form the buildings
Breach of the covenant and their enforcement:
To breach restrictive covalent means to indulge in such an act that can is in opposition to
the restrictive condition of the deed, as theses are enforceable by the owner of the land. The
remedies for such breach is monetary compensation, injunction order over the servinent
tenement from continuation of the breach or for specific performance requiring the servinent
tenement to repair the wring.
(c) The law of undue influence that comes under the “Class 2A, presume undue influence” is
applicable for Brad to justify that he accepted the terms of the premiums on the mortgage due to
the undue influence from the actor. The court will require Brad to produce sufficient evidence to
make sure that what Brad did was under the undue influence of film star Angelina. Using the
support of this act Brad can find a way out of paying the premium4.
4

License and code of practices for mortgage lenders: As per NCCPA the credit provider and
credit assistance in Australia are required to be licensed. The mortgage leader must obtain an
Australian Financial Service license from ASIC under the corporation act 2001 to provide the
financial services. This includes issuing, acquiring or arranging a derivative, swap or deposit
product.
Code of Practices: As per section 126 of NCCPA the lender must give consumers a credit guide
as soon as practicable after it becomes apparent to the credit provider that it is likely to enter into
a credit contract with the consumer.
Consumer Credit Act: in the ambit of consumer Credit act comes: Consumer Credit Act, 2006;
and Costumer credit protection Act. Th act lays down the rules and provision formation and
content of the agreement and credit advertising, method for calculation for determining the
charges for credit lending, termination and early settlement. This also requite the trader to renew
the license time to time., and make provisions for the credit businesses including plans for
assistance, inexpensive dispute resolution system, application of harmonized standard for all
consumers, credit organisation and execution of moral rational system.
Unfair term in consumer contract regulation: laws have been made for protecting the
consumers form the unfair terms in circumstances where they have little or no opportunity to
negotiate under he contractual term. A contract term is said to be unfair when it causes
significant imbalance between the right and obligation of both the parties to the contract. The
term is not resonance in protecting the legitimate inters t of the business, the term causes
detriment in case it is enforced and the term is to be transparent.
? King, Sarah. Beginning Land Law. Routledge, 2015.

Breach : For instances where the terms of contract are unfair means the basis code of
practice have been breached by the mortgage leader. In such cases the remedies are available to
the party under undue influence as chanting terms of contract and giving monetary compensation
to the party entering the contract under unfair terms.
Creation of mortgage section 85 of LPA: the mortgagor of land is governed by section 85 of
the law Property Act, 1925. This requires both rights of the possession at the common law and
rights of sale under the legislation.
Unfair bargains, possible misrepresentation and undue influence: the unfair bargain means
to put the party under the pressure to agreed which are not at acceptable as per the legal
requirements. Moreover, this terms creates imbalance between the parties of contract regarding
their rights and obligations. Misrepresentation means to presenting the terms and condition of the
contract in modified ways or not disclosing the original conditions. Undue influence means to
obtain the consent of the party over the term of contract by threatening or other way of
pressuring.
Clog on the equity of redemption: this can be referred as any provision entered into a contract
for prevention of the payment or performance of debt obligation for which a security was given
which is refereed as clog on the equity redemption and is void. It established the term that once
a mortgage is always a mortgage. The clog on the redemption is a provision in a mortgage
agreements preventing the redemption of payments of the debt or performance of the obligation
for which a security was given.

Analysis
(a) The benefits of the covenant will continue for Jennifer under the section 78(1) of
Property Law Act 1926. This statement can be supported by the case of “Tulk v Moxhay[1848]5”
in which it is recognised that there are times in which reasonable agreements can fix future
buyers of property and continue the condition of the agreement to be followed by the new
buyers. The applicant, Tulk, possessed some real stakes in “Leicester Square”, London, and
vended one of the property to a person. While selling the property Tulk has made the buyer to
promise not to build any building in order to keep the Leicester Square free from buildings. The
purchaser sold the piece of land to another person, he then sold it to a next person, and eventually
Moxhay bought the property. Moxhay was aware of the agreement that was made at the first
time sale of the land but he denies to carry on the covenant by stating the reason that he was not
a party in the making of this covenant. High Court, comprising of Lord “Cottenham”, considered
for Tulk, and approved a ban to stop Moxhay from construction on the land6. The agreement had
been envisioned to continue with the property since the moment it was developed7. The court
also made the judgement that all the succeeding purchaser have to follow the covenant as they
were informed about the existence of this covenant. Furthermore, as the agreement amounts to a
5
? Tulk v. Moxhay, 2 Ph. 774 (1848).
6
? Anderson, Jerry L. "The Divergent Evolution of English Property Law." Prob. & Prop. 29
(2015): 50.
7
? Williams, Peter, and Angelique Williams. "Managing Urban Intensification through
Conservation Covenants." Instruments of Planning: Tensions and challenges for more equitable and sustainable
cities (2015): 155.

agreement between a seller and purchaser, it is enforceable alongside a purchaser for worth with
either positive or actual announcement8. Moxhay was aware with the notice of actual covenant,
he was responsible to follow the agreement. This decision is based on the 1925 Act of Land
Registration in which registrable agreement are made and their enforcement terms are defined9.
Another such supporting case that ensure the run of the covenant that was made between
Angelina and Brad is “Cantrell v Wycombe District Council, [2008]”10 in which Housing act of
1985 allows the residential housing consultant to apply a restrictive agreement against a
successor of the original party of the covenant, however the authority does not hold any profiting
land. It was mentioned that it does not impose a new agreement to any successor. It is evident
from the judgement and proceedings of the cases that Jennifer has the right to have all the
benefits of the covenant that were originally made between Anglia and Brad.
(b) The easement that Angelina has reserved in the covenant was for her direct
connection to the main road through Brad`s land which was blocked for Jennifer. The situation
can be explained in the legal framework through the case study of Kingsgate Development
Projects Ltd v Jordan, [2017]”11. This case investigated whether the existence of three gates
8
? Page, John. Property diversity and its implications. Routledge, 2016.
9
? Butler, Nicolette, and Omar Madhloom. "Rethinking Property Law modules: putting theory into
practice." The Law Teacher51, no. 4 (2017): 440-452.
10
? Cantrell v. Board of Supervisors, 87 Cal. App. 2d 471, 197 P.2d 218 (Ct. App. 1948).
11
? Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).

alongside the way of a right of method contributed to a considerable intrusion with the right of
route.
No considerable interference rose due to the first door because, even though it pointed the
degree of the initial grant still the 75% of the way was widen so if any vehicle pass through the
way it can pass through the narrow part as well. The first gate was controlled through an
electronic button, therefore no interference was felt during the passage of the gate, and simply
pressing a button opens the door12. If it was controlled manually then it was possible that the gate
would have offered hindrance. Likewise, the third gate remains open and provides no substantial
hindrance to the easement. The second gate was offering some substantial problem to the way.
These three gates were placed at a distance of 100m apart from each other. According to the
section 2(1) of property law which states that the convenience will remain open until and unless
it is stopped by legal deed. Therefore in this case, Jordan has the right to access the easement and
it should be noted the electronic gates did not offer hindrance so they are legal for the company
to install them. From the study of this case it can stated that Brad can place a gate in the
easement but it should be in a way that it should not offer any hindrance to Jenifer.
In another case on easement as that of “Gore v Naheed & Ahmed, [2017]”13, in which it
was considered that if the owner of housing property named as Granary, served the advantage of
right of way that was approved in 1921, it will include all the convenience that are linked with
the profession of Gore. In the agreement of the 1921 the owner of Granary was granted the
12
? Dixon, Martin. "The Organic Nature of the Law of Real Property: Reforming Modern Land
Law." Modern Studies in Property Law 9 (2017).
13
? Gore v. Naheed, 2017 E.W.C.A. Civ 369 (2017).

access to garage of the house that was initially a part of the driveway on which right of way was
granted. It made relation with the case of Brad and Jennifer in a sense that the easement was
granted to Jennifer from Angelina, therefore the right of the way should remain there even if the
owner of the property is changed. It was declared in the case that if one piece of land is granted
as a right of way then there should not be any misuse of this right to use any other piece of land.
The conditions of the entitlement of way were adequately wide to let a direct entry into the
garage in link with the usage of the house. The location have been dissimilar had the usage of the
garage been autonomous from the use of the Granary. In the initial covenant the usage of the
entitlement of way to have entry to the garage was allowable, as this case is a recap of the
elementary rule that an entitlement granted for the advantage of leading land plot cannot be
misused for other purposes in the adjoining property that is possessed by the same owner. Brad is
misusing the agreement that was made between him and Angelina. It should be noted that
Jennifer holds the right to access the entitlement of the way to get access to the main road as it
was mentioned in the initial agreement. She is not misusing the easement that was preserved by
Angelina. Furthermore, it was concluded in the case that it makes no difference if the owner of
the plot for which the right of route has been given is using it for another plot that is possessed
by him but the purpose of the usage should be the same as it was for the first plot. The case made
the decision that if the entitlement of the way is misused to make any benefits out of the other
plot a fine can be applied on the owner and legal action will be taken as that is prohibited as per
the entitlement of the right. Until and unless Jennifer is using the easement of other purposes
than to access the main she holds the right on the easement as per the entitlement of way.
(c) The premium that has been charged on the mortgage is due to the undue influence of Brad by
Angelina. He got a mortgage on the terms that if he redeems the mortgage within one year he

will have to pay 20% premium. This situation can be explored in more depth with the help of
case law of “Royal Bank of Scotland Plc v Etridge, [2002]”14. This case comprehends eight
combined appeals in which owners had mortgaged their households to secure allows used by the
men for their individual businesses. The wives had not any straight advantage from these
mortgages.
The businesses initiated by these men could not succeed and the bank required to take
ownership of their houses. The wives of these men claimed to have been excessively prejudiced
by their individual partners to sign the security contract. Therefore, they wanted the contracts to
be professed and annulled over their individual bonds of the household’s equity, thus evading
recovery. This case is the same as Brad’s case who took loan with a great influence by the film
star Angelina and when he build his house, she move to another place. Brad has accepted the
term and conditions that were imposed by the Windfall bank due to the undue influence of
Angelina15.
The House of Lords clarified that banks are indebted to ensure that their customers
(wives of the men, who have taken loans) have signed with their own consent. The wives as
couple in order to achieve safety over their marital home, signed the mortgage that would only
offer advantage to one person. The bank initiated an investigation to lookout for unnecessary
influence in such cases. The trusted lawyer should confirm full gratification that both people
gave a fully up-to-date agreement. The lawyer should meet the wife in privacy, in the absence of
14
? Royal Bank of Scotland v. Etridge (No 2), 2002 A.C.2 773, 2001 U.K.H.L. 44 (2002).
15
? Dupuis, Ann. "Legal Frameworks for Multi-owned Housing in England and Wales: Owners’
Experiences." In Multi-owned Housing, pp. 35-56. Routledge, 2016.

her husband in order to discuss the scheduled loan. Once the lawyer confirms free agreement, the
bank’s safety is guarded by the belief of ‘manifestation of unrestricted will’. The Law court also
detained the claim that states that obvious disadvantage to be substituted by the requirement of
elaboration about why a wife would sign the loan that only benefits her husband. The court made
the judgement that the bank cannot be held responsible for the poor decision made by the wives.
Hence in the light of this case Brad can present his case under the cause of undue influence by
the film star Angelina. If the court finds that it was an act of excessive influence by the film star
and now she has moved a different place then Brad will allowed to free himself from the
premium. For this brad need to come up with strong reasons and evidence that the act of
accepting the premium was an act of undue influence of Angelina. If he is not able provide
sufficient proofs to satisfy the court he can never avoid the premium.
Conclusion
(a) Angelina has made the proper legal covenant with Brad while selling her ground to him.
Now Brad is violating the covenant whereas Jennifer holds the right to have the benefits
of the covenant. Section 78(1) of the “Law of Property Act 1925 allocates the right of
having the benefits of the covenant to Jennifer for being the successive owner of the
property. She can go to the court and accuse Brad for violating the covenant that he is
obliged to follow.
(b) “The Countryside & Rights of Way Act 2000” allow Jennifer to have the access to the
main road through the easement.16 Brad has no right to make any hindrances in the way.
He may put a gate in the way that does not influence the conveyance of Jennifer. And as
16
? Abbey, Robert, and Mark Richards. Property Law 2018-2019. Oxford University Press, 2018.

per the CRoW act Jennifer is bound to use the easement only for the purpose that was
based by the Angelina in the initial covenant. Hence the close gate at the easement is
against the right of way and Jennifer can challenge this. Brad can block the easement
only through a legal deed.
(c) Under the law of undue influence, “Class 2A, presumption of undue influence” Brad can
claim in the court that he was influenced by the film star Angelina to build the house for
which he accepted the premium of 20% on the usual repayments to the Windfall bank.
However the bank reserves the right to carry an investigation to confirm that this was an
act of undue influence. Only if Brad makes the court believe that what he did comes
under the class 2A of undue influence law then he can save himself from the premium.

Bibliography
Primary Sources
Case Laws
Cantrell v. Board of Supervisors, 87 Cal. App. 2d 471, 197 P.2d 218 (Ct. App. 1948).
Gore v. Naheed, 2017 E.W.C.A. Civ 369 (2017).
Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).
Royal Bank of Scotland v. Etridge (No 2), 2002 A.C.2 773, 2001 U.K.H.L. 44 (2002).
Tulk v. Moxhay, 2 Ph. 774 (1848).
Secondary Sources
Books
Abbey, Robert, and Mark Richards. Property Law 2018-2019. Oxford University Press, 2018.
King, Sarah. Beginning Land Law. Routledge, 2015.
McFarlane, Ben, Nicholas Hopkins, and Sarah Nield. Land law: text, cases, and materials.
Oxford University Press, USA, 2015.
Page, John. Property diversity and its implications. Routledge, 2016.
Articles
Anderson, Jerry L. "The Divergent Evolution of English Property Law." Prob. & Prop. 29
(2015): 50.
Butler, Nicolette, and Omar Madhloom. "Rethinking Property Law modules: putting theory into
practice." The Law Teacher51, no. 4 (2017): 440-452.

Dixon, Martin. "The Organic Nature of the Law of Real Property: Reforming Modern Land
Law." Modern Studies in Property Law 9 (2017).
Dupuis, Ann. "Legal Frameworks for Multi-owned Housing in England and Wales: Owners’
Experiences." In Multi-owned Housing, pp. 35-56. Routledge, 2016.
Jackson, Paul, and David C. Wilde. The reform of property law. Routledge, 2018.
Walsh, Emily. "Public versus private land use controls in England and the USA." International
Journal of Law in the Built Environment 9, no. 1 (2017): 18-31.
Williams, Peter, and Angelique Williams. "Managing Urban Intensification through
Conservation Covenants." Instruments of Planning: Tensions and challenges for more equitable
and sustainable cities (2015): 155.