Land Law: Issues and Legal Principles

This article discusses the issues and legal principles related to Land Law, including priorities, overriding interests, actual occupation, and joint tenancy. It also provides solutions to various scenarios related to property ownership and covenants.

Running Head: LAND LAW
Land Law
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Author Note

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MEMORANDUM 1
The issue and legal principles
The property law issue which have been identified in the given situation is related to that
of whether Patsy Bull (PB) has any form of rights in the ‘Bryn Glas’ property. The issue is also
to determine the right of Karen Stone to remain in 14 Frieston Road property. In the given
situation the issue has to be addressed thorough the application of law related to priorities and
overriding interest in Land law. The principles of priority comes into the equation when a
transferee of legal estate may be bound by the rights of any third party. According to the Land
Registration Act 2002 section 28 unless it has been stated by s29 the interest which is created
with respect to the first overrides or prevails over any interest which has been created latter1. As
provided by section 29 of the Act when a registered estate has been subjected to deposition for a
valuable consideration the buyer is bound to any overriding interest or registered interest2.
The schedule 3 of the Act provides for interest which overrides latter transactions of a
land which is already registered. These include a legal lease of 7 years or less and the interest of
any person who is in actual occupation3.
A lease hold estate in land is provided for a period which is not more than seven years
form the day on which it has been granted. If the lease is for a period of 0-3 years there is no
requirement of deed or registration and when the deed is three years of more it requires a deed4.
In order to determine whether the lease is legal or not it has to have duration of less than
seven years. Where the lease is for a period of less than seven years it is provided protection in
1 Land Registration Act 2002 section 28
2 Ibdi section 28
3 Ibdi Sch 3
4 PHILLIPS AND Mackenzie TEXT BOOK ON LAND LAW. OXFORD PRESS 2004

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form of a overriding interest. There is no other requirement in the given situation. In this
situation the new land lord does not have the right to evict the tenant5.
Interest of a person in actual occupation also has to be discussed in the situation. This is
an interest which is available to a person in actual occupation at the time of disposition except in
case it is the interest of a person with whom before the disposition an inquiry is made and he or
she failed to disclose such rights. The interest of a person the occupation of whom would not be
obvious on carefully and reasonably inspecting the property when the deposition is made and the
person to when the disposition is made is not provided with actual knowledge during the period.
To make it simple according to the provisions of the LRA2002 Schedule 3 par 2 an overriding
interest is created in case there is a proprietary interest (lease) and or there is an actual
occupation when the sale is made6. Overriding interest provides protection to an existing interest
and does not create any new interest.
The curtain principle states that it is not mandatory for the purchaser to have a look
beyond the legal curtain for the purpose of verifying who has a beneficial interest and pay a part
of the purchase money to them. This can be simply overreached by them.
The current situation of property ‘Bryn Glas’
It has been provided through the situation that property had been purchased by NL form
JG with the intention of residing in the property. The property had been inspected by NL were he
had reasonably assumed that the personal possessions and furniture belonged to the seller. The
property had actually been leased to a tenant called PB who had been living in the property. This
fact had come to the attention of NL only when he had visited the property to take
5 Ibdi pp 122
6 Land Registration Act 2002 Sch 3 Para 2

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measurements. He was surprised to find the tenant in the kitchen who had provided him with a
copy of a document provided to her by JG. The tenant is not willing to move out. According to
the above discussion of law where the lease is for a period of less than seven years it is provided
protection in form of an overriding interest. There is no other requirement in the given situation.
In this situation the new land lord does not have the right to evict the tenant. Here although the
lease is not registered and no mention of PB is seen in the title records it would still be having an
overriding interest and would be provided protection. Thus till the lease is over PB has the right
to stay in the property as she will have a priority and an overriding interest. The deed is valid as
it has all the required contents of a valid lease such as name of parties, date, terms of lease and
details of property7.
The current situation of property at 14 Frieston Road property.
In relation to this property the issue can be addressed through the discussion of actual
occupancy and beneficial interest. It has been discussed above that when a person is in actual
occupation and In the given situation it has been provided that before the disposition an inquiry
is made and he or she failed to disclose such rights and person the occupation of whom would
not be obvious on carefully and reasonably inspecting the property when the deposition is made
and the person to when the disposition is made is not provided with actual knowledge during the
period. Here reasonable care is taken by NL to verify any actual occupancy and thus the
exception would be applicable. Further as per the curtain principle it is not mandatory for the
purchaser to have a look beyond the legal curtain for the purpose of verifying who has a
beneficial interest and pay a part of the purchase money to them. This can be simply overreached
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by them. There is no record which provided for any right to KS over the property and thus she
has no right to stay in the property.
MEMORANDUM 2
The issue here is to identify the ownership with respect to the property located at 44
Briony Avenue.
There are two types of ownership when there are two or more owners. These are known
as tenancy in common and Joint tenancy. In this situation each of the owner is provided with
interest in the property denoting that the property is not divided and is shared as a whole.
Although in terms of possessions there is much similarity between the types of ownership there
are a few significant differences which has to be taken into consideration for the purpose of
resolving the above identified issue.
A joint tenancy provides equal shares of the property to the owners through the same
deed and same time. The terms of the tenancy is provided for in the deed or other documents
related to property ownership. It has to be noted that the joint tenancy can be broken or changed
in case any of the tenants sells or transfers his or her share in the property to another person. This
changes the arrangement of ownership and the ownership is changed to a tenancy in common for
all the parties involved. It is also important to note that the right to survivorship is also different
in relation to both kind of ownerships. In case the ownership is a joint tenancy when one of the
joint owner is dead the property will automatically get transferred to the other existing owners.

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This is known as the right to survivorship. On the other hand no right to survivorship is provided
in case of tenancy in common8.
The change of joint tenancy to tenancy in common is known as severing the joint
tenancy. This process needs a service if a written notices with respect to the change which is
known as the severance. It can be done without any form of agreement or cooperation of the
other owners. This has to be properly recorded at the land register and the other owner will be
notified after the event has been completed. The process can be carried out through the
agreement of the owners with a different process however the result is the same. When a notice
of severance has been served it does not signify that the person is no longer the property owner
but merely indicates that there has been a change in relation to the way in which the property
passes after the death of any owner9.
Application of the legal principles on the situation
It has been clearly stated through the scenario that Stuart Herdman has transferred his
property to four of his grandchildren in form of joint tenants in law and equity. The four
grandchildren are Alice, Bertie, Carrie and Dominic all of whom had been residing in the
property at the time it had been provided.
It has been provided through the situation that Alice had been offered a job in Manchester
she had sold her property to Marcus. Although the market value of the property had been
provided to Alice by Marcus there had been no paper work which had been completed. In the
given situation through the application of the above discussed law it can be stated that there has
no change in the way ownership is present between the four owners. Although the property has
8 SEXTON R LAND LAW TEXTBOOK OXFORD UNIVERSITY PRESS 2004
9 MARTIN DIXON MORDEN LAND LAW8TH EDITION 2012

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been sold to Marcus by Alice, there has been no notice of severance provided. The law states that
joint tenancy can be broken or changed in case any of the tenants sells or transfers his or her
share in the property to another person. This changes the arrangement of ownership and the
ownership is changed to a tenancy in common for all the parties involved. However it requires
the change of joint tenancy to tenancy in common which is known as severing the joint tenancy.
This process needs a service of a written notice with respect to the change which is known as the
severance. As there has been no severance there is no change in ownership type.
It has been further provided through the situation that Dominic had been killed in
climbing accident. He has made a will according to which her interest in the property is to be
transferred to her boyfriend Eddie. Here also there has been no change in the type of ownership
as no notice of severance has been provided yet.
Bertie had attempted to leave all his shares to his girl friend Heidi. This means that in
case Bertie dies the ownership will be transferred. He had served a notice of severance to the
address of the property as he wanted to sever his equitable joint tenancy. It has been further seen
that when the letter arrives at the property only Bertie is present and it fails to reach the other
owner. It has been discussed above that the process needs a service of a written notices with
respect to the change which is known as the severance. It can be done without any form of
agreement or cooperation of the other owners. This has to be properly recorded at the land
register and the other owner will be notified after the event has been completed. Thus although
the other owners did not have any knowledge about the notice it would be valid. Unfortunately
Bertie has died and the ownership of the property is now a tenancy in common due to the
severances notice. Here if there was joint tenancy the owner of the property would have been
Carrie Herdman because of the right to survivorship as discussed above. In case the ownership

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is a joint tenancy when one of the joint owner is dead the property will automatically get
transferred to the other existing owners. This is known as the right to survivorship. On the other
hand no right to survivorship is provided in case of tenancy in common. However here the
property ownership has been changed to tenancy in common and thus Carrie will not benefit
from the right to survivorship and Heidi and Eddie also commonly own the property.
MEMORANDUM 3
There are three primary issues which needs to be taken into consideration for this section of the
paper
 Whether he can stop IL repairing and selling cars from the property
 Whether it will it be possible to force IL to repair the wall.
 Whether IL is required to contribute financially to the cost of the repairs of the shared
track
The relevant legal principles
Covenants are a kind of restrictions which arise when sale takes place part and the seller
wants to ensure that the buyer does an act or omission with respect to the land which has been
sold. They can also be created with respect to agreements between different land owners.
Covenant can be defined as a promise which has been made via a deed. For instance when A
sells a part of his land to B he can impose or promise that the land will not be used for
commercial purpose and the common path leading to the land would be properly maintained.
Original covenantor is the person who has promised to do or not to do an act. The person
who has the right to get the promise enforced is known as the original covenantee. Covenants

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can be positive or negative. For instance it is a negative covenant to not use the property for
business purpose and it is a positive covenant to maintain and repair a fence.
When there is a legal contract between the original parties to the covenants the covenant
is obviously enforceable by the covenantee. The question which needs to be discussed for the
purpose of addressing the issue is what happens when the original parties to the covenant have
sold their land10.
This question depends on the fact that whether a benefit or burden has been passed to the
parties during the purchase of the dominant or servient land.
The assignment of a benefit can be express or implied. The LPA 1925 section 136 deals
with express was of assignment which must be in writing or an express notice has to be provided
to the covenantor11. The provisions of the case of P & A Swift Investments v Combined English
Stores Group [1989] AC 632 discussed rules regarding implied assignment. The case stated that
covenant has to concern and touch the land benefited12. There has to be intention that the benefit
is run implied via LPA 1925 s 7813. When the covenant was made, the original covenant had a
legal estate in the land. Finally, the person who is the successor and is willing to enforce the
covenant has to have a legal title of the dominant land.
At common law the general rule is that burden of any form of covenant cannot run legally
as discussed by the cased of Austerberry v Corporation of Oldham (1885) 29 Ch d 75014 and
10 DUDDINGTON J 2013 LAND LAW EXPRESS LAW EXPRESS
11 Law of Property Act 1925 section 136
12 P & A Swift Investments v Combined English Stores Group [1989] AC 632
13 Law of Property Act 1925 section 78
14 Austerberry v Corporation of Oldham (1885) 29 Ch d 750

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Rhone v Stephens [1994] 2 AC 31015 however there is a exception which is of Mutual Benefit
and Burden as provided in Halsall v Brizell [1974] Ch 16916.
In the case of Tulk v Moxhay (1848) 2 Ph 77417 it had been stated that the burden will
pass if the covenant is negative, it accommodates a dominant tenement, has intention to burden
the land and there must be notice provided to such person. However the covenants which have
been created after 1925 requires registration.
To make it simple at common law only the benefit can pass but the burden cannot pass.
And on the other hand at equity the burden can pass only in relation to restrictive covenants.
Whether a covenant is restrictive or not can be analyzed through the application of the
test provided in the case of Haywood v Brunswick Permanent Benefit Building Society (1881) 8
QBD 40318. In this case it was stated that in case any effort or expenditure is required for the
covenant then it is a positive covenant.
In the given situation it has been provided that HW has purchased a farm from DM. DM
held sold a land adjacent to the farm to AY. Here AY had been imposed with restrictive
covenants under which he was not allowed to use the land for business purpose, he was to
maintain a 2m wall and repair the common path. However the property had been sold by AY to
IL. In the present situation HW wants to impose the covenants which are present on the servient
land on IL. It needs to be analyzed that HW has benefited the Covenants or not. At both common
law as well as equity benefit is passed to the successor. The provisions of the case of P & A
Swift Investments v Combined English Stores Group [1989] AC 632 discussed rules regarding
15 Rhone v Stephens [1994] 2 AC 310
16 Halsall v Brizell [1974] Ch 169.
17 Tulk v Moxhay (1848) 2 Ph 774
18 Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403.

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implied assignment. The case stated that covenant has to concern and touch the land benefited.
There has to be intention that the benefit is run implied via LPA 1925 s 78. When the covenant
was made, the original covenant had a legal estate in the land. Finally, the person who is the
successor and is willing to enforce the covenant has to have a legal title of the dominant land.
Here all requirements have been fulfilled by HW and DM and thus the benefit have passed.
However no burden is passed at common law but it may pass at equity in case the covenant is
negative, it accommodates a dominant tenement, has intention to burden the land and there must
be notice provided to such person. Thus only restrictive burden or covenants will pass to the
subsequent purchaser of the covenantor. Here through the application of the rule provided in the
case of Haywood v Brunswick Permanent Benefit Building Society it can be stated that only one
of the covenant at issue is restrictive, which is that of not carrying out business in the land as the
other two covenants require additional effort. Thus HW will only be able to enforce the covenant
of not using the land to sell and repair cars and not the other two covenants.

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Bibliography
Austerberry v Corporation of Oldham (1885) 29 Ch d 750
DUDDINGTON J 2013 LAND LAW EXPRESS LAW EXPRESS
Halsall v Brizell [1974] Ch 169.
Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403.
Land Registration Act 2002
Law of Property Act 1925
MARTIN DIXON MORDEN LAND LAW8TH EDITION 2012
P & A Swift Investments v Combined English Stores Group [1989] AC 632
PHILLIPS AND Mackenzie TEXT BOOK ON LAND LAW. OXFORD PRESS 2004
Rhone v Stephens [1994] 2 AC 310
SEXTON R LAND LAW TEXTBOOK OXFORD UNIVERSITY PRESS 2004
Tulk v Moxhay (1848) 2 Ph 774