Examiners’ report 2013

Examiners’ report 2013

LA3003 Land law – Zone B

Introduction
Land law is often described as ‘dull and difficult’, but although the common law
property lawyers’ preoccupation with abstractions (e.g. estates and interests, legal
and equitable rights, easements and restrictive covenants, etc.) can often confound
the beginner, there is no justification for such a charge. Land law is, in truth, a
fascinating and intellectually rigorous subject, the study of which will hone your legal
skills and powers of analysis even if you have no intention of ever conveying a
piece of legal estate or granting a demise.
To excel in the subject you need to be able to manipulate concepts and rules that
have been honed over something like a millennium; but candidates often fail to do
themselves justice because of some quite basic errors in technique. Consequently,
before turning to the substance of the examination, I would ask you to consider the
following generic points, as I genuinely believe heeding this advice will help you
better achieve your true potential in this subject.
• Poor handwriting – consider writing on alternate lines if you do not have
neat writing.
• Poor grammar and spelling – language is the lawyer’s tool and unless
you learn to express yourself clearly and unambiguously you are bound to
underachieve. Whether English is, or is not, your first language you can still hone
your skills before the examination by reading articles and cases while listening to
English language broadcasts and recordings on TV, radio and the internet.
• Avoid waffle – too many candidates still seem to think that reciting rote
learnt bookwork in the general area of the question will get them marks – it does
not. Focus on the question asked, and the issues raised, throughout your essay.
• Avoid overlong introductions – start addressing issues from the outset in
both essays and problem questions.
• Avoid repetitive conclusions – there is little point just repeating what you
have said in your essay! Here is your chance to reflect on what went before by
commenting on the law you have applied or the views you have considered. It might
sound counter-intuitive, but say something new in your conclusion – this is an
examination answer, not a scholarly article, and you should not waste time
repeating yourself.
• Never quote chunks out of the statute book – we know you have it with
you in the examination and give no marks for accurate copying!
• Do not simply litter your answer with numerous case names – say just
enough (i.e. a line) about the facts and judgment(s) to illustrate why you think a
case is relevant. This shows the Examiner you have read the case and have an
opinion concerning it and its relevance.

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• Avoid inventing new facts in problems – there is more than enough to

say in the examination already and you should be careful not to add to the
complexity – although that should not preclude you pointing out where a critical fact
has not been revealed and explaining why that is significant.
• Avoid ambivalence – both problems and essays are invariably set in the
grey areas of the law where alternative arguments exist, but that should not prevent
you reaching a conclusion after considering the merits of the various approaches
and explaining why you favour one over the other(s).
• Do not be frightened by ambiguity – a single judgment will often have a
number of possible ratios on which jurists might well disagree, while those problems
multiply where there is more than one judgment in a case. Do not ignore this
complexity but make reference to it. The same is even true of statutes, on occasion,
and likewise juristic writings.
• Make sure you divide up your time sensibly and spend as long on
your last question as on your first – it is much easier to get the first marks on a
question than the last and consequently time spent perfecting your initial answer is
counter-productive if you eat into the time you should be spending on your last
answer.
• Never question the facts in a problem – nor speculate on whether they
can be proved. Think of yourself as a judge sitting in the Court of Appeal writing a
judgment that has come to you in case stated form. You are there to apply the law
to the given facts, willing to reject first instance decisions, overturn Court of Appeal
precedents and, although nominally bound by House of Lords/Supreme Court
decisions, still able to criticise or distinguish them. You can of course say that the
facts are insufficient to come to a final verdict although apply the law to the facts
that you do know.
• Finally, know the law (in so far as it is known), know the arguments (in
so far as there is doubt over what the law is or should be) and know what you
think – make sure you include your own opinion (although not exclusively and after
giving due weight, but not undue deference, to case law and juristic writings).
I hope that gives you a flavour of what we are looking for in the examination. Please
remember your role is to offer a critique of the law you are applying and
commenting upon. We want to see evidence that you have engaged with our
subject; for the academic study of law at a leading institution, such as the University
of London, is not about the simple recitation of knowledge but the application of it,
to both problems and essays. Ultimately, we want you to engage with us in a
debate on the law – what’s good, what’s bad and what’s indifferent.

Specific comments on questions

Question 1
Numbers 1 and 2 The Copse are adjacent, detached houses. There is a piece
of open ground running across the rear of both properties. The Village
Council owns the registered title to the open ground, which it intends to use
once it has enough money to renovate and extend the neighbouring leisure
centre.
In May 1990 when Abe purchased the registered title to Number 1 he cut back
the vegetation on an overgrown metre-wide strip of land between Numbers 1

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and 2. He continued to mow it regularly until 1994 when he replaced the grass
with gravel because it required less maintenance.
When Babs moved into Number 2 in September 1990 she noticed Abe mowing
the strip between their two houses and assumed it must belong to Number 1.
Shortly after moving in, Babs also noticed the piece of open ground at the
rear of the properties. As she did not have enough space in her own garden
she decided to use it to grow cabbages. In 1993 Babs erected a small fence to
stop rabbits from eating the cabbages. The following year she installed a
water sprinkler system on the open ground.
In April 2013 Abe decided to build an extension to Number 1. His surveyor
discovered that the gravel strip between Number 1 and 2 actually belonged to
Number 2. Babs wonders whether she has any rights to the piece of open
ground belonging to the Village Council.
(a) Advise Babs.
(b) How, if at all, would your advice differ if the Village Council’s title to
the open ground was unregistered?
General remarks
(a) Abe needs advice upon whether his clearing, four or so years of mowing
and/or his subsequent laying to gravel of the strip between Nos 1 and 2 may satisfy
the constituent elements (factual possession and intention) required to make a
claim either under LRA 1925 or 2002. Answers should cover when Abe’s adverse
possession began, so as to establish which of the two registered land legislative
regimes apply. As far as advice on the LRA 2002 is concerned there is scope to
consider the potential applicability of the boundary exception (Schedule 6, para.5).
Here candidates may wish to refer to recent judicial views in Zarb v Parry and IAM v
Chowdrey.
Advice to Babs about any claim she may make to the Villiage Council’s open
ground will also need to consider if (and from when) the Pye requirements might
have been established by Babs’s different activities on the land. Here candidates
may also wish to explore the significance of the Council’s future plans.
Finally answers should indicate an understanding – which needs not be lengthy – of
ss.15 and 17 of the Limitation Act 1980.
(b) Candidates need to show an understanding of the traditional workings of
adverse possession as it still operates where title is unregistered.
Law cases, reports and other references the Examiners would expect you to
use
s.75 LRA 1925, Sch 6 LRA 2002, Pye, Powell etc.
Common errors
Most candidates failed to consider whether or not the adverse possession began
before or after October 1991. This is important as that determines whether the LRA
1925 or 2002 applies.
A good answer to this question would…
Be aware that the issue of when Abe’s adverse possession began is left
deliberately vague and candidates are advised to answer in the alternative (whilst
expressing a view as to when it is most likely that a court would determine that
adverse possession began given the limited facts available.

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Poor answers to this question…

Failed to distinguish factual possession (which concentrates on the extent that the
land is used) from intent to possess (which focuses on the adverse possessor’s
state of mind).
Question 2
Alastair was the registered owner of Blackacre, he lived there with his long
term companion, Nick, and they both contributed to the purchase price.
Blackacre is a farm which includes two fields known as White Field and Gold
Field.

Last year:

i) Alastair orally agreed that Stephen could rent White Field for
three years for an annual rent of £1,000.

ii) Alastair granted Dawn, by deed, the right to use a shortcut

across Gold Field to access the road from her house.

iii) Alastair agreed, in writing, to give Roger the right to purchase

Blackacre anytime over the next decade.

iv) Nick went to Tibet for an indefinite period.

Last month Alastair sold Blackacre to Iggy who is now the registered owner
of Blackacre. Iggy asked Stephen to leave White Field and refused Dawn
permission to cross Gold Field. Roger now wants to exercise his option. Nick
has now returned to claim what “is rightfully his”. Alastair has disappeared
with the proceeds of the sale. Iggy has asserted that he is not bound by
Roger’s option and owes Nick nothing.

(a) Advise Stephen, Dawn, Roger and Nick.

(b) Explain briefly how, if at all, your advice would differ if all the above
transactions were governed solely by the rules pertaining to
unregistered title.

General remarks
This is a technical question on the mechanisms that operate in registered and
unregistered titles regarding the protection of third party interests.
i) Stephen
Reg Title – Provided this is a legal lease (e.g. fulfils all the requirements of s.54
LPA) this is an overriding interest under Schedule 3 para.1 which binds Iggy.
Unreg Title – Legal rights bind the world.
ii) Dawn
Reg Title – Although granted by deed the easement needs to be substantively
registered to be legal (s.27 LRA 2002) and binding. If not substantively registered it
is an equitable easement, and therefore not an overriding interest under Schedule 3
para.3, but could be protected by means of a notice (s.32 LRA 2002) in the absence
of which Iggy will not be bound (s.29 LRA 2002) provided he is a purchaser for
valuable (excluding nominal and marriage) consideration (s.132 LRA 2002).

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Unreg Title – Legal easement under (s.52 LPA) and Iggy therefore bound.
iii) Roger
Reg Title – Provided agreement complies with the requirements of s.2 LP(MP)A
1989, this is an estate contract that can be protected by means of a notice (s.32
LRA 2002) in the absence of which Iggy will not be bound (s.29 LRA 2002) provided
he is a purchaser for other than nominal or marriage consideration (s.132 LRA
2002).
Unreg Title – Protectable as a Class C(iv) Land Charge registered against the name
of Alastair in the absence of which Iggy will not be bound (s.4(6) LCA 1972)
provided he is a purchaser for money or money’s worth (i.e. valuable consideration
including nominal but not marriage Midland Bank v Green).
iv) Nick
Reg Title – Nick has an interest under either a resulting or constructive trust (no
need to differentiate at this stage in your equity career or spend overlong on Stack
et al.) which could have been ‘protected’ by means of a restriction ensuring no
dealings with the registered title in the absence of compliance with the requirements
of overreaching. Presumably no such restriction was in place since Alastair, as sole
registered owner, has transferred title to Iggy who will take free of Nick’s interest
unless Nick is in occupation and that occupation is discoverable on a reasonably
careful inspection
Unreg Title – As an over-reachable interest that has not been over-reached the
issue is governed by the equitable doctrine of notice (Kingsnorth v Tizard). It would
be useful to note that in contrast to registered land this will come down to whether
or not Iggy has actual or constructive notice of the interest (rather than the
occupation).
Law cases, reports and other references the Examiners would expect you to
use
LRA 2002 and LCA 1972.
Common errors
A large number of candidates spent most of their answer discussing whether or not
a lease, an easement, an option or an interest behind a trust had been acquired.
However, on the facts as stated that really was not an issue. It is obvious that these
interests (subject to the minor caveats detailed above) have been acquired by the
respective third parties. Thus, what we are looking for is whether the interest
acquired by the third parties will bind the new owner. This is a question about the
mechanisms of land registration and you need to focus your energies accordingly.
A good answer to this question would…
Because this is technical problem question candidates can gain real credit if they
take the opportunity to comment on the efficacy or otherwise of the mechanisms
even if tripped up by some of the detail.
Poor answers to this question…
Simply went through the requirements of each interest and stated that they had
been fulfilled.
Student extract
‘In answering this question I must first consider the history of land registration
and the various statutory provisions that have moulded the law as we know it
today. This will involve an examination of the Land Registration Acts of 1925
and 2002 along with other relevant legislation. Prior to 1925…’

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Comment on extract
Please avoid this type of ‘introduction’ (which often extends for two or three pages).
In a problem question you do not have time to provide a generic introduction
discussing the law’s history or provisions in abstract. You need to start applying the
law to the facts from the outset by swiftly identifying the issues and explaining (in so
far as one can) the law that applies in those circumstances.
Question 3
“Formalities requirements such as those found in s.52 Law of Property Act
1925 and s.2 Law of Property (Miscellaneous Provisions) Act 1989 are little
more than traps to ensnare the unwary.”
Discuss.
General remarks
Candidates should consider what formalities are intended to accomplish including
concentrating the minds of the parties; providing clear evidence and certainty; and,
most importantly, channelling those engaged on a transaction down certain paths to
ensure the correct procedure is used to effect a transfer of title, or whatever else
was intended. Candidates should also note the supposed capacity of formalities to
do injustice and why, in consequence, equity sometimes intervenes in the form of
proprietary estoppel and constructive trust.
A good answer to this question would…
Show awareness of the tensions involved in trying to reconcile justice with certainty
and how too much emphasis on the one will necessarily undermine the other.
Others might even challenge whether certainty and justice really are mutually
exclusive!
Poor answers to this question…
Simply wrote all they knew about formalities without any attempt to focus on the
question.
Question 4
Rory owned two small converted outbuildings on his farm known as Blue
Cottage and Red Cottage. Because Blue Cottage has a wonderful view he
decided to use it for short-term holiday lets, unlike Red Cottage, which he
planned to rent out for longer periods. He bought a standard form draft
leasehold agreement from the local stationers and crossed out the word
‘Lease’, replacing it with the words ‘Licence Agreement’. He then photocopied
the document and used one copy to rent out Blue Cottage to a company
called Farm Vacations for 12 months, and the other copy to allow his friend
Bethany to occupy Red Cottage “until such time as she no longer requires it”.
Rory assumed that Farm Vacations would arrange a series of short term
holiday lets, so he crossed out the term in their agreement precluding any
subletting without the freeholder’s consent. He also added a clause stating
that he reserved the right to have the premises cleaned every week and to
carry out inspections without notice. After the agreement was duly executed
Samantha persuaded Farm Vacations to grant her a 10 month lease of Blue
Cottage using the same standard form draft leasehold agreement originally
used by Rory but without making any amendments to the original printed
terms.
Rory has now sold his farm to Ewan who seeks your advice as to whether or
not he can evict Bethany and Samantha.

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General remarks
Red Cottage
When assessing if a lease or a licence has been granted you simply need to
consider Exclusive Possession and Certainty of Term. Despite what many
candidates still say (and appears to be said in Street) rent is not critical (s.205 (xxvii
LPA1925 and Ashburn) although its presence might be probative that a lease was
intended.
In considering exclusive possession you might take the advice of Templeman in
Street v Mountford and consider:
‘the terms of the grant [i.e. the clauses in the document and whether they are
real or sham devices]...
...the purposes of the grant [i.e. what the parties were trying to achieve
ultimately re the use of the land]...
...and the surrounding circumstances [i.e. the context in which it took place
such as family arrangement, business transaction etc.]’
You should of course note that the change of heading will make no substantive
difference and recognise that all the substantive terms in the agreement are drawn
directly from a standard lease. Clearly the fact that Bethany is a friend should be
raised although the formality of a written agreement militates against a finding of no
intent to create legal relations.
In considering certainty of term you should be aware of the hard-line prudential
approach and how Mexfield has cleverly side stepped the rule to turn uncertain
terms into determinable (on the uncertain event occurring) 90-year leases provided,
amongst other things, the grantee, as here (unlike the other lease where certainty of
term is not in doubt) is a human being (as companies cannot hold a lease for life
and thus granting them an uncertain term cannot be brought with s.149(6) LPA
1925 via the approach in Mexfield).
This looks like a 90-year lease determinable at Bethany’s volition. We did not say
whether the agreement was duly executed, nor whether Rory had a registered or
unregistered title, both of which are relevant considerations given the subsequent
sale to Ewan. This is, admittedly, not a question focusing on such issues but it was
hoped that candidates would include some discussion on that point.
Blue Cottage
You need to consider how the further amendments might qualify the verdict reached
above regarding exclusive possession. In our view these are enough to tip the
balance toward a licence, which then allows you to consider Bruton in the context of
the further grant to Samantha. Despite the initial agreement being ‘duly executed’
you should realise (even assuming Bruton to be correctly decided) that neither
Farm Vacations’ licence, nor Samantha’s ‘lease’ will bind Ewan.
Law cases, reports and other references the Examiners would expect you to
use
Prudential v LRB, Berrisford v Mexfield, Bruton v London & Quadrant, ss.149(6),
205 LPA 1925 etc.
Common errors
Candidates often repeated themselves when considering the Blue Cottage. You
need to say something new at this juncture and things that you have already said
regarding the Red Cottage, which are relevant to the Blue Cottage, should be
swiftly and simply noted.

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A good answer to this question would…

Have a clear structure and adopt the Templeman approach to determining the
issues.
Poor answers to this question…
Tended to meander around the issues and failed to reach a clear conclusion.
Question 5
“The law relating to the passing of the benefit and burden of non-leasehold
covenants reflect the contractual origins of the doctrine.”
Discuss.
General remarks
Good answers might make the point that the benefit of most contracts is normally
assignable. Thus, in the context of land law, it is hardly surprising that the benefit
can pass at common law for both positive and negative covenants. As a
consequence the original covenator is liable to both the original covenantee and
their successors in title notwithstanding whether the covenant was restrictive or not.
It is, of course, the passing of the burden that breaks new (non-contractual) ground
and candidates should recognise how equity’s intervention is what (ultimately)
turned the restrictive covenant into a property interest. We use the term ‘non-
leasehold’ rather than ‘freehold’ as the latter always seems a misnomer, given that
the rules are as applicable to covenants between neighbouring leaseholders as
they are between freeholders.
Law cases, reports and other references the Examiners would expect you to
use
Tulk v Moxhay etc.
Common errors
Many candidates completely failed to address the contractual origins aspect of the
question or dealt with leasehold covenants.
A good answer to this question would…
Go beyond the dry reciting of rules to consider how the contractual origins of non-
leasehold covenants are reflected in those rules.
Poor answers to this question…
Wrote all they knew about covenants generally without ever attempting to address
the issues raised.
Question 6
“The scope and operation of the rule in Wheeldon v Burrows is clear and
entirely justifiable. Regrettably, the same cannot be said of s.62 of the Law of
Property Act 1925.”
Discuss.
General remarks
Candidates could choose to take the terms of the quotation apart. They could also
opt to make points that agree and/or dispute the assertions in the two sentences.
Answers may involve a forensic examination of how clear and justifiable the ideas in
Wheeldon v Burrows (in particular necessary for the reasonable enjoyment/
continuous and apparent) are. Answers may wish to include consideration of
whether the requirements are cumulative or alternative. When considering the
second sentence of the quotation answers may want to discuss the (recent) judicial
views that challenge the obiter dicta in Sovmots by suggesting that prior diversity of

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occupation it is not always a necessary pre-condition for the operation of s.62.

There is also scope to incorporate references to the thinking in Law Com 327.
Law cases, reports and other references the Examiners would expect you to
use
Wheeldon v Burrows, Sovmots v SS Environment, Platt v Crouch, s.62LPA.
Common errors
A failure to offer any form of argument.
A good answer to this question would…
Dissect the question and offer a clear and cogent argument one way or other, while
acknowledging arguments that might point to an opposite conclusion.
Poor answers to this question…
Wrote all they knew and/or just listed the requirements of each mechanism.
Question 7
Ed approached Dainty Dairies after his bank refused to lend him the money
he needed to improve his farm buildings. Dainty Dairies agreed to lend Ed the
money. Dainty Dairies agreed that the money was repayable over ten years
and secured by way of a mortgage over the farm. Their mortgage deed
contained the following terms:
(i) Ed must sell half of the milk he produces each year to Dainty Dairies
for the duration of the mortgage at the prevailing market price.
(ii) Dainty Dairies has the right to buy three fields at the northern
boundary of the farm if it decides to build a new depot in the locality.
(iii) Ed cannot redeem the mortgage for the first nine years.
In 2013 Ed redeem the mortgage for the first nine ye When Ed missed two
loan repayments, Dainty Dairies wrote to him indicating that Big Bottles plc
had enquired about the possibility of buying Ed’s farm. Ed is keen to be able
to stay in possession to arrange his own sale because he believes this will
maximise his chances of realising the best sale price, which is important to
his plans to buy a smaller farm.
Advise Ed about:
(a) the validity of the terms of the mortgage;
(b) the rival proposals over possession and sale.
General remarks
(a) Advice should consider each of the three terms the mortgage in turn,
drawing on appropriate case law, to test how any of them may or may not fall foul of
equitable principles protecting Ed’s equity of redemption – most notably the doctrine
of clogs and fetters and unconscionability.
(b) Advice on the rival proposals for possession and sale may benefit by
including reference to relevant statutory provisions and associated case law.
Law cases, reports and other references the Examiners would expect you to
use
Norgan, Palk, Cuckmere Brick, s.36 of the AJA 1970; ss.91, 101,103 LPA 1925
Common errors
There was a failure on the part of a sizeable number of candidates to address the
different issues raised by each of the separate clauses you were asked to advise
upon. Please avoid repeating the same case law in an examination script.

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A good answer to this question would…

Raise the relevant cases on clogs and fetters and unconscionability at the relevant
point in the discussion.
Poor answers to this question…o
Cited lots of cases but made no attempt to explain their particular relevance to the
various points raised in the problem.
Question 8
In 2008 Sam, Tarquin, Ursula and Venus bought Lofty Towers as a place to
live and run a small Bed and Breakfast business. Sam and Tarquin each paid
35% of the purchase price and Sam 20%, whilst Venus only put in 10% as she
was going to undertake the running of the Bed and Breakfast. The house was
conveyed to the four of them as beneficial joint tenants.
In 2011 Sam went to work abroad. He sent an unsigned written note to Ursula
and Tarquin saying that he wanted Lofty Towers to be sold immediately so
that he could take his share. The note was sent by registered post to Lofty
Towers and was opened by Ursula who immediately threw the note away
without showing it to Tarquin. On emptying the bin Venus discovered the
note and sent an SMS text message to the three remaining owners telling
them that she was hurt not to have been consulted and had consequently
decided to sell her share of Lofty Towers.
In 2012 Ursula died. Her will left all of her property to Tarquin.
You are consulted by Sam. He has returned to the UK and he wants to return
to live in Lofty Towers. However, Tarquin and Venus have told him that they
have agreed to sell Lofty Towers and he will have to find somewhere else to
live.
Advise Sam:
(a) as to the effect of the above events on the legal estate and equitable
interests in Lofty Towers;
(b) whether Tarquin and Venus are entitled to exclude him from living
there and whether there is anything he can do to prevent a sale.
General remarks
(a) The express declaration clearly creates a beneficial joint tenancy despite
unequal contributions. Is Sam’s letter sufficient notice of severance under s.36 and
what are the requirements for serving under s.196? Clearly the lack of signing is not
significant, nor the fact that Tarquin did not get an opportunity to read it (Kinch).
However, what about the failure to address it to Venus? Under s.196(4) there is a
requirement to include the names of those one intends to serve; but s.196(3) is
more Delphic despite joint tenants clearly not coming within the express exemption
from naming under s.196(2). On the assumption that it does not sever, will Venus’s
text message work? In the absence of direct authority one could, I suppose, argue
that this is ‘notice in writing’. However, the inclusion of the indefinite article in the
statute surely ensures this is not ‘a notice in writing’; while the mischief the provision
seeks to address is hardly well served by recognising the (essentially transitory) text
message as a valid notice in this context.
(b) You simply need to apply the relevant statutory provisions in the 1996 Act.
Law cases, reports and other references the Examiners would expect you to
use
ss.36, 196 LPA 1925; ss.12–15 TOLATA 1996, Kinch v Bullard etc.

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Common errors
Talking about the belated attempt to sever on Ursula’s death.
A good answer to this question would…
Use the statute book to construe the provisions in light of relevant case law.
Poor answers to this question…
copied out sections of the statute book (for which you gain absolutely no credit).

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