LAND LAW

SPRING TERM 2020

LAND LAW
TUTORIAL
PACK SPRING
TERM 2020

Professor Judith Bray; Sandra Clarke; Gavin

Love; Dr Frances Burton.
UNIVERSITY OF BUCKINGHAM
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TUTORIAL 1: CO-OWNERSHIP

This tutorial considers co-ownership of property. The law of co-ownership

applies whenever two or more people enjoy rights of ownership of land at the
same time. The land can be held with freehold or leasehold title and the co-
owners may have a variety of relationships such as civil or married partners or
cohabitants or possibly business partners. The law of co-ownership is based
on rights in land derived from property law as opposed to rights arising from
the status that arises from certain relationships. These rights arise under
family law.

Intended learning outcomes:

 To understand the law on co-ownership that existed before the Law of
Property Act 1925;
 To understand the changes made to the law on co-ownership by the Law
of Property Act 1925;
 To understand the difference between a joint tenancy and a tenancy in
common in practice;
 To explain the law on severance;
 To be able to apply the principles of the law on co-ownership to problem
scenarios;
 To understand the role of TOLATA 1996 in co-ownership of property.

Reading:

Bray Unlocking Land Law 6th ed Ch 8

Clarke and Greer Land Law 6th ed Ch 8

Dixon Modern Land Law 11th ed Ch 4 generally and particularly pp 189-192

Further Reading:

Mary Percival “Severance by Written Notice – A Matter of Delivery” [1999] Conv 60

Nigel P. Gravells “Severance of a joint tenancy: a land law ‘whodunnit’ ?" Cambridge
Law Journal [2012] 71(1), 42-44

Cases and statutes:

Kinch v Bullard [1999] 1 WLR 423

Burgess v Rawnsley [1975] Ch 429
Harris v Goddard [1983] 1 WLR 1203
Re Drapers Conveyance [1969] 1 Ch 486
Stack v Dowden [2007] 2 AC 432
Goodman v Gallant [1986] Fam 106
Gore & Snell v Carpenter (1990) 60 P & CR 456 Ch D
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Stack v Dowden [2007] 2 AC 432

Quigley v Masterson [2011] EWHC 2529
Davis v Smith [2011] EWCA Civ 1603
First National Securities Ltd v Hegerty [1985] QB 850

TUTORIAL QUESTIONS:

1. Seven brothers wish to combine to buy a house to use as an investment and

to rent to students. Some can afford to contribute more than others. They are
unsure whether to purchase as joint tenants or tenants in common. Advise
them.

2. Catherine and Michael buy a house together which is registered in both of

their names. The transfer states that they acquire the property as legal and
beneficial joint tenants. Catherine visits her solicitor who sends a letter to
Michael giving notice of her desire to sever the joint tenancy. The letter is
sent by registered post and arrives on the day that Michael has a heart attack.
Catherine takes the letter from the postman but does not show it to Michael,
who dies later that day. His will leaves his entire estate to Beryl. Advise
Catherine.

3. Jane and Mary buy a house together which is registered in both of their
names. The transfer states that they acquire the property as legal and
beneficial joint tenants. Jane visits her solicitor who advises her to send a
letter to Mary giving notice of her desire to sever the joint tenancy. Jane tells
Mary that she has obtained this advice, but never actually sends the letter.
Mary dies. Under her will she leaves her entire estate to Beryl. Advise Jane.

4. ‘The recognition of both joint tenancies and tenancies in common makes

English law unnecessarily complicated.’ Do you agree with this statement?

5. Rumbold House was registered in the names of James and Fiona, a married
couple, who both executed a statement on the transfer form that they held the
property on trust for themselves as joint tenants. Fiona, who is studying for a
law degree, told James in front of witnesses that she was contemplating a
divorce and that accordingly she wanted their beneficial interests to be held
as tenants in common. James was so distressed by the prospect of a divorce
that he burst into tears, and without saying anything, walked out of the house
where he was knocked down and killed by a passing lorry. Advise the
administrators of James’s estate.

6. Ada, Ben, Con, Dai and Ed were keen bird-watchers and frequently went to a
local wood to pursue this hobby. In January 2019 they heard that the freehold
of the wood was for sale, and fearing it might be built upon, they purchased it.
They provided the money in equal shares. The wood had a small hut which
they used for meetings. In April 2019 Ben planned to emigrate and orally
agreed with Finn to sell his interest in the woodland to him; however, before
anything formal was done to give effect to this or any money was paid, Ben
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died in a motor bike accident, leaving all his property to Mavis. Later in 2019
Dai was killed by a flock of pigeons in Finsbury Circus, leaving all his real
property to Wyn and his personalty to Xerxes, both of whom are keen bird-
watchers. Before he died he wrote a note to the others saying ‘I want to sell
my interest in the wood to you all. I am going abroad.’ He had pinned this note
on the notice board in the hut in the wood. In February 2020 Ed decided he
had lost interest in bird-watching and would prefer to spend his time canoeing
on the river. He would like the wood to be sold so he can use the money to
purchase a canoe. The others would like the wood to be retained.
Advise the parties.

(Taken and adapted from Summer 2010 examination)

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TUTORIAL 2: LEASES

This tutorial explores the law on leasehold property. A leasehold estate is one
of the two legal estates in land. The advantage of having leasehold interests in
property is that two or more people can enjoy rights in the same parcel of land
i.e. the tenant and the landlord. The creation of a tenancy requires compliance
with certain formalities and where those are not met a lease may only exist in
equity. All lease will contain certain covenants or terms of the relationship
whereby the landlord and the tenant promise to carry out certain duties in
relation to each other. These may be express or implied. The characteristics of
a lease are not defined in statute but under common law in the key case of
Street v Mountford.

Intended learning outcomes:

 To identify the key characteristics of a lease as laid down in Street v
Mountford: rent , a certain term and exclusive possession;
 To understand the different types of leases;
 To explain the formalities for the creation of both legal and equitable leases;
 To describe key leasehold covenants;
 To describe the remedies of both the landlord and the tenant for breaches of
covenants by either party;
 To explain when a lease is terminated.

Textbook reading:

Bray, Unlocking Land Law, 6th ed, Ch 13

Clarke and Greer Land Law 6th ed Ch 5

Dixon Modern Land Law, 11th ed, Ch 6

Further reading:

Law Com No 271, paras 3.10‐17, 3.32, 8.50‐52

Baker A “Bruton licensees in Possession and a Fiction of Title” [2014] Conv 495
Bright S “Beyond Sham and into pretence” [1991] 11OJLS 138
Dixon M “The Non -Proprietary Lease: The Rise of the Feudal lease” [2000] CLJ 25
Pawlowski M “The Bruton Tenancy: Clarity or More Confusion?” [2005] 69 Conv 262

Cases & Statutes:

Street v Mountford [1985] AC 809

Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386
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Ashburn Anstalt v Arnold [1989] Ch 1

Aslan v Murphy [1990] 1 WLR 766
AG Securities v Vaughan; Antoniades v Villiers [1990] 1 AC 417
Bruton v London & Quadrant Housing Trust [2000] 1 AC 406
Kay v London Borough of Lambeth [2006] 2 AC 465
Berrisford v Mexfield Housing Association [2011] UKSC 53
Southward Housing v Walker [2015] EWHC 1615
Gilpin v Legg [2017] EWHC 3220

Law of Property Act 1922, s 145

Law of Property Act 1925, ss 1, 52, 54, 205(1)(xxvii), 149
Protection from Eviction Act 1977, s 5
Landlord and Tenant Act 1985, ss. 8 and 11
Law of Property (Miscellaneous Provisions) Act 1989, s 2
Land Registration Act 2002, ss 3, 4, 27(2)(b), 33(b), 116, Sched 3 para 1
The Homes (Fitness for Human Habitation) Act 2018

Questions for discussion:

1. Determine the effect of:

(a) A lease of Green Gables to Anne until she marries;
(b) A lease of Red Gables at a yearly rent to Rob until the landlord requires
the land for development under which agreement Rob goes into possession
and pays rent yearly;
(c) Jenny orally grants Billy a lease of her flat for two years, taking immediate
effect, at market rent. Billy goes into possession;

2. “The House of Lords’ ruling in Bruton v London & Quadrant Housing Trust has
turned orthodoxy on its head: leases are now viewed as being part of the law of
contract as opposed to the law of real property”.

Discuss.

3. Last year Henry saw a notice in his local newsagents advertising a ‘room in a
shared flat’. He telephoned and arranged to see the registered freehold owner,
Rose, who did not live in the flat. Rose explained that the room was in a two
bedroomed flat where there was already another person, Sam, in occupation.

Rose told Henry that he could move in. Sam’s approval was not sought. Rose told
Henry that the rent for the whole flat was £200 per week. She said, ‘I expect you and
Sam will share it equally, but if one of you doesn’t pay, I consider that I am entitled to
the whole rent from the other’. Henry moved in.

After 3 months Sam moved out. Henry wanted his friend Ollie to take Sam’s place.
Henry phoned Rose to ask whether Ollie could move in and Rose replied, ‘of course,
so long as he pays the rent and doesn’t smash the place up, I don’t mind who you
have living there’.
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A month after Ollie moved in, Rose sent both Henry and Ollie separate but identical
agreements headed ‘Licence Agreement’. Each agreement contained the following
terms:

(i) The licensees acknowledge that they have not been granted a tenancy;
(ii) The licensor may at all reasonable times enter the premises to inspect the
state of repair;
(iii) The licence fee in respect of the flat is £200 per week;
(iv) If either licensee should move out and the other remain, the other is to be
responsible for payment of the entire licence fee until a replacement occupier
is found;
(v) The licensor will clean the flat on each weekday at a mutually convenient
time;
(vi) This agreement is to continue no longer than the duration of the current
Parliament but is subject to early termination by one week’s notice if the
elected Prime Minister should cease to hold office in the interim.

Henry and Ollie both signed and returned their separate copies of the agreement
with a note stating that they did not require Rose to furnish them with the cleaning
services. Rose responded saying that was fine as she had not really wanted to do
this anyway.
Advise Henry and Ollie whether they occupy the flat under a lease or a licence.
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TUTORIAL 3: LICENCES

This tutorial looks at licences in land. Licences play a very significant role in
land law because they make the presence of someone such as a delivery
person lawful and without a licence that person would be a trespasser.
Licences are fundamentally different from other rights in land because they
are not proprietary in nature but merely give personal rights against the
licensor.

Intended Learning Outcomes:

 To understand the nature of a licence in land

 To define the relationship between licensor and licensee
 To be able to distinguish between the various licences in land such as a
bare licence, licences coupled with a grant, a contractual licence and an
estoppel licence
 To explain the nature of a contractual licence and its status
 To understand the operation of estoppel licences

Textbook reading:

Bray, Unlocking Land Law, 6th ed, Ch 6

Clarke and Greer Land Law 6th ed [no specific chapter but see pgs 133, 180,181-
2,186-187]

Dixon Modern Land Law 11th ed Ch 9 pgs 371-384

Cases & Statutes:

Winter Garden Theatre v Millennium Productions [1946] 1 All ER 678 (CA) and
[1948] AC 173 (HL)
Hounslow LBC v Twickenham Garden Developments [1971] Ch 233
Verrall v Great Yarmouth BC [1981] QB 202
King v David Allen [1916] 2 AC 54
Clore v Theatrical Properties [1938] 3 All ER 483
Errington v Errington [1952] 1 KB 290
Binions v Evans [1972] Ch 359
Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044
Re Sharpe [1980] 1 WLR 219
Ashburn Anstalt v Arnold [1989] Ch 1 at 13C‐27C
Chattey v Farndale Holdings (1998) 75 P & CR 298 at 313‐317
Manchester Airport v Dutton [2000] QB 133 (CA)
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Further Reading:

Bright S.. ‘The Third Party’s conscience in Land Law’ [2000] Conv 368.
Dixon M. ‘An Everyday Story of Country Folk: Proprietary Estoppel and Licences’
[2004] 41 SLRev 52.
Hill J. ‘The termination of Bare Licences’ [2001] CLJ 89.

Questions for discussion:

1. Discuss the difference between the following types of licence:

(a) A bare licence;
(b) A licence coupled with an interest;
(c) A contractual licence.

2. Alice owns two buildings of registered title. One is used as a dwelling and is
occupied by Barbara and Carol, in each case under an agreement having three
years left to run. The other is used as a pottery workshop which Alice shares with
Dominic under a similar agreement, each keeping their potting equipment there.
Each of these agreements has been established by earlier court proceedings to be a
contractual licence rather than a lease.

Alice sells and conveys the workshop to Edward for £50,000. She makes no
reference to Dominic, and gives Edward no reason to doubt that he is buying the
workshop with vacant possession.

Alice offers the dwelling for sale to Fergus for £250,000, ‘subject to’ the rights of
Barbara and Carol. Alice intends by this stipulation for Fergus to undertake to
honour their licences; the purchase price of £250,000 represents a reduction of
£25,000 on the market value were she to have sold the dwelling with vacant
possession. Fergus assumes, however, that the stipulation is meant merely to
protect Alice from any liability if he is unable to take vacant possession of the
premises, and although he realises the price is low, simply thinks he is getting a
good bargain. Fergus agrees to buy the building on these terms, and it is conveyed
to him.

Fergus does not, in fact, attempt to go into possession of the dwelling, but
immediately sells it again to George. In his dealings with George Fergus make no
reference to the terms of the contract under which he acquired the building from
Alice. George knows that Fergus has only recently acquired it and is not occupying
it, so assumes that it is empty and does not bother to visit it.

Edward and George, now the owners of the respective buildings, are dismayed to
find Barbara, Carol and Dominic in occupation and refusing to leave. Fergus and
Alice have disappeared.

Discuss
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3. “If, as a result of the imposition of a constructive trust [in the manner described in
Binions v Evans and Ashburn Anstalt v W J Arnold & Co], a purchaser is bound to
give effect to the terms of a contractual licence, the licensee’s interest is being
converted, by the back door, into a proprietary right” (Hill).

Discuss.

4. Zoe and William met in a bar and struck up a relationship. At the time of their
meeting William had a secure local authority tenancy and Zoe had a house of her
own. After a year Zoe asked William if he would like to move in with her. Mindful of
the terrible stories she had heard about people having moved into their partner’s
property, paying towards the mortgage thereby acquiring beneficial interests in the
property, it was agreed that William would not contribute to the costs associated with
the acquisition and maintenance of the house and that any income which he wished
to contribute to their “joint living arrangement” would be used for the luxuries in life
such as foreign travel and their general recreation and amusement.

William was concerned about losing the security of his local authority tenancy so he
sought assurances from Zoe that he would be secure in his new home. Zoe
confirmed that he would be. Consequently, William gave up his secure tenancy and
moved in with Zoe.

Five years later Zoe and William decided to separate. However, William asserted
that he had a right to remain in the property or to be properly compensated in the
event that it was agreed he should move out. Zoe argued that William had no more
than a bare licence and was entitled to neither accommodation nor compensation.

Advise the parties.

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TUTORIAL 4: PROPRIETARY ESTOPPEL

Proprietary estoppel is an informal way of acquiring rights in land. It allows the

claimant to claim land even where the strict formalities have not been
complied with. The doctrine has developed over the centuries and in its
modern form relies on proof of a representation, reliance on that
representation and proof of detriment in circumstances that it would be
unconscionable to deny a remedy to the claimant..

Intended Learning Outcomes

 To be able to define what is meant by proprietary estoppel

 To describe the main elements of proprietary estoppel
 To understand what is meant by a representation
 To explain what is meant by detrimental reliance
 To describe the various remedies that may be granted by the courts
 To explain the role of unconscionability in proprietary estoppel

Textbook Reading:

Bray, Unlocking Land Law, 6th ed, Ch 7

Clarke and Greer Land Law 6th ed Ch 10

Dixon Modern Land Law, 11th ed Ch 9 pgs 384- 405

Further reading:

B McFarlane & A Robertson “Apocalypse averted: proprietary estoppel in the House

of Lords” [2009] LQR 535
Dixon M “Proprietary estoppel: a return to principle?” [2009] 3 Conv 260
Bray J “Proprietary estoppel: a new Chapter Dawns?” DLJ [2010] 175
Mee J “Proprietary Estoppel and Inheritance: Enough is Enough?” Conv [2013] 280

Cases & Statutes:

Thorner v Majors [2009] UKHL 18

Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [2008] 4 All ER 713,
[compare also Ghazaani v Rowshan [2015] EWHC 1992
Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501
Gillett v Holt [2001] Ch 210
Pascoe v Turner [1979] 1 WLR 431
Inwards v Baker [1965] 2 QB 29
Ramsden v Dyson (1866) LR 1 HL 129
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Re Basham [1986] 1 WLR 1498

Whittaker v Kinnear [2011] EWHC 1479
Suggitt v Suggitt [2012] EWCA Civ 1140
Bradbury v Taylor [2012] EWCA Civ 1208
Davies v Davies [2016] EWCA Civ 463
Evan Davies v David Davies [2015] EWHC 1384
Liden v Burton [2016] EWCA Civ 275 (casenote [2018] Conv 84)

Revisit: Matchmove v Dowding [2016] EWCA Civ 1233

Section 116 of the Land Registration Act 2002

Questions for discussion:

1. Samson has worked for many years at a small garden centre owned by his
uncle, Colin. He enjoyed the work but knew he was not paid as much as he
could expect if he was working in another garden centre and he knew he was
paid less than other employees. However, Colin allowed Samson and his wife
Kirsty to live rent‐free in a small flat attached to the garden centre. Colin was
a man of few words but he told Samson three years ago that he was going to
leave the garden centre to him. As a result, Samson did not complain about
his low wages.
He stopped looking at job adverts for other better paid jobs, which he had
been considering for several months. Last year Kirsty was offered promotion
at work but, as it involved moving to another part of the country, she decided
to turn it down. Samson often helped Colin with paperwork for the garden
centre and one day last year Colin said to Samson, “I don’t know where I
would be without you, of course all this will be yours when I have gone”.

Colin died last month, leaving all his property to the Royal Horticultural Society.

Advise Samson.
(Adapted from the Summer 2009 Examination)

2. To what extent does the doctrine of proprietary estoppel enable the strict formality
rules contained in section 2 of the Law of Property(Miscellaneous Provisions) Act
1989 to be circumvented?

3. Mr Young lives in a large house ‘Gable House’ with a self-contained flat. Zelda
has worked for him for over thirty years. She first worked for him in 2009 as a
cleaner when she was nineteen. She received a wage of £60 per week for the first
ten years. Zelda did not ask for an increase although she found it hard to live on
such a small amount of money. In 2012 Mr Young broke his leg and after this he
needed constant care. He asked Zelda to become his carer and housekeeper and he
offered her use of the self-contained flat. He ceased to pay her a wage but provided
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money for the purchase of food and other essential items. He often told her that he
would make sure she was provided for after he died and anyway when he was gone
Gable House would be hers.

Mr Young died earlier this year. He has left all his property to a charity Keep the
Countryside Wild ‘KCW’.

Zelda has come to you for advice as to whether or not she has a claim over Gable
House or any of Mr Young’s estate.

Adapted from Summer 2012 Examination

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TUTORIAL 5: EASEMENTS

Easements are important rights in land that allow one landowner the right to
enjoy the land of another. An easement can bind successive landowners so it
is important that the rules are clear as to what can constitute an easement and
in what circumstances such rights can arise. Easements have a number of key
characteristics derived from the case of Re Ellenborough Park and cover a
very wide range of rights which continue to evolve.

Intended Learning Outcomes

 To recognise easements and distinguish them from other rights over

land;
 To understand the nature of easements and their importance in land
law;
 To differentiate between the different ways in which easements can be
acquired;
 To understand the remedies for interference with an easement;
 To identify how an easement can be extinguished.

Text book reading:

Bray, Unlocking Land Law, 6th ed, Ch 10

Clarke and Greer Land Law 6th ed Ch 12

Dixon Modern Land Law, 11th ed Ch 7

Useful further reading:

Law Commission’s Consultation Paper No 186: Easements, Covenants and Profits à

Prendre (see http://www.lawcom.gov.uk/docs/cp186.pdf)

Law Commission Report No 327: Making Land Work: Easements, Covenants and
Profits à Prendre (2011)
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/
229064/1067.pdf).

Haley M “Easement, exclusionary use and elusive principles – the right to park”
[2008] 72 Conv 244
Bray J “Kent & Kavanagh and anor: s.62 fills a black hole” [2006] DLJ 203
Conway H “Out with the Old: Easements and Obsolesence” [2007] 71 Conv 87
Xu Lu “Easement of car parking: the ouster principle is out but problems may
aggravate” [2012] 4 Conv 291
Pratt N “Confrontation, Contentious Use and a West London Chip Shop” [2016] Conv
414
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Bray J, “More than just a walk in the park: a new view on recreational easements”
[2017] Conv 419
Bevan, C., ‘Opening Pandora's box? Recreation pure and simple: easements in the
Supreme Court Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018]
UKSC
57; [2018] 3 WLR 1603’ [2019] 1 Conv 55–70
McLeod, G., ‘The traditional concept hits the bunker: easements after Regency
Villas
Title Ltd v Diamond Resorts (Europe) Ltd’ [2019] 3 Conv 250–73

Cases & Statutes:

Re Ellenborough Park [1956] Ch 131

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57
Moncrieff v Jamieson [2007] 1 WLR 2620 (HL)
London and Blenheim Estates v Ladbroke [1993] 1 All. ER. 377
Batchelor v Marlow [2003] 1 WLR 794
Hill v Tupper (1863) 2 H & C 121
Coventry v Lawrence [2014] UKSC 13
Wheeldon v Burrows (1879) 12 Ch D 31
Copeland v Greenhalf [1952] Ch 488
Wong v Beaumont Property Trust [1965] 1 QB 173
Wheeler v JJ Saunders (1996) Ch 19
Hair v Gilman 2000 P & CR 108
Kent v Kavanagh and Another [2006] EWCA Civ 162
Chaudhary v Yavuz [2011] EWCA Civ 1314
Winterburn v Bennett [2016] EWCA Civ 482

Law of Property Act 1925, ss 1, 52, 62, 65

Prescription Act 1832, ss 2, 4
Access to Neighbouring Land Act 1992, s 1
Land Registration Act 2002, s 27(2)(d), Sched 3, para 3

Questions for discussion:

1. Jo and Ola own a freehold house on an estate of ‘luxury houses for young
professionals’, as the advertising material stated when they purchased their home.
The transfer to them of the house included the following rights:
1. “the right for the Transferees and their successors in title to use the golf
course, squash courts, tennis courts, restaurant, sauna and spa facilities
(hereinafter called ‘the facilities’) on the Transferor's adjoining estate”.

The facilities in question were located in the transferor’s adjoining health club,
SunSpa.
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2. “the right for the Transferees and their successors in title to park one vehicle
in the car park on the Transferor’s adjoining estate”
3. “the right for the Transferees to access the Transferor’s land for the purposes
of maintaining the West Flank of the dwelling house on the Transferees’ land.”

Unfortunately, SunSpa ceased trading, and the premises have been sold to NewFit
Enterprises Ltd, They have informed Jo and Ola that their use of the facilities must
now cease, as they will be improving the facilities and attracting a larger paying
clientele. NewFit have also said that Jo and Ola may not use the car park any more,
as more room is needed for clients’ cars. The passes that Jo and Ola were given to
access the health club and its grounds have been disabled, which also means that
work that had just begun repairing the west flank wall of their house has ceased, as
their builder cannot gain access.

Advise Jo and Ola.

2. Jack owns a house backing on to an alleyway. For over 19 years he has driven his
car along the alleyway to get to and from his garage to the highway. The garage was
in place when he bought the house. There is no mention of a right of way on his
Register of Title, but no-one has queried his use of the alleyway in the past.

Recently, he has received a letter from the local council demanding a payment of
£800 per annum for using the alleyway, which belongs to it. The council say that if he
does not pay, he will not receive a key to the new gates they will soon be erecting.

Advise Jack whether he can continue to drive over the land without paying the
requested fee to the council.

3. Jaz was the registered freehold proprietor with absolute freehold title of the land
shown edged with a heavy black line on the plan below. It is known as 1, 2 and 4
Forge Lane cottages. The terrace was built in about 1890, and is a typical row of
workmen’s dwellings, the front doors of which open directly on to the street.

The
Haven

Jaz now lives in number 1. Until last month, he used to live in number 2 (he was
refurbishing number 1). Last month he completed the sale of number 2 to Lia who
moved in the same day. The Transfer of Part to her has been registered at the Land
Registry.
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Dee lives in number 4. She holds under the residue of a lease for 25 years.
Two paths cross the garden, as shown on the plan below:
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Forge Lane Cottages

A
x N
Forge
The House
Haven 1 2 3 4

Forge Lane

A number of queries have arisen and are listed below. How would you answer them?
(a) Dee has recently erected a large garden shed in the position shown by the x
on the site plan. Olu, who lives in number 3, objects, saying he has a right to
light. Advise Dee whether she will have to remove the shed.
(b) The transfer of part to Lia made no mention of any right to use the path
shaded in light grey on the plan. Jaz has just erected a fence between the
gardens of 1 and 2 which blocks the path. Does Lia have any right to use the
path?
(c) The drain of number 2 runs under the garden of number 1 in the position
shown by the broken line on the plan. The transfer of part granted a right to
Lia in the following terms:
“...and together with the right for the Transferee and her successors in title to use the
drain which passes under the garden of the adjoining land of the Transferor known
as 1 Forge Lane Cottages .....”
The drain which serves number 2 is blocked. Jaz’s drain is flowing normally.
Is Jaz obliged to clear the blocked drain?
Can Lia enter the garden of number 1 to clear it?
(d) The adjoining property known as the Haven has a legal easement to draw
water from the well, marked at A on the plan. This right has not been
exercised for 40 years, since mains water was connected. However, in the dry
summer last year, the owner started to take water from the well to water his
garden. Jaz objects, saying that the right has been abandoned. Advise Jaz.
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TUTORIAL 6: FREEHOLD COVENANTS

Covenants in freehold land are personal agreements between two neighbours

which generally restrict the use of land of one neighbour by the other.
Covenants can have a considerable effect on the use and enjoyment of land
but the key question is whether they will be enforceable against successors in
title. Unless they are enforceable the value of a covenant will be limited.
Common law rarely allowed such rights to bind a third party but equity has
allowed these rights to be enforceable in certain circumstances.

Intended Learning Outcomes

 To define a freehold covenant and its role in land ownership

 To distinguish between covenants at common law and in equity
 To understand why freehold covenants are not upheld in common law
 To explain the consequences of a breach of a freehold covenant
 To describe the various ways that freehold covenants can be discharged
or modified
 To describe the various proposals for reform of the law on freehold
covenants

Textbook reading:

Bray, Unlocking Land Law, 6th ed, Ch 11

Clarke and Greer Land Law 6th ed Ch 13

Dixon Elements of Land Law, 11th ed Ch 8

Further reading:

Law Commission’s Consultation Paper No 186: Easements, Covenants and Profits à

Prendre (see http://www.lawcom.gov.uk/docs/cp186.pdf)

Law Commission Report No 327: Making Land Work: Easements, Covenants and
Profits à Prendre (2011)
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/
229064/1067.pdf).

Cooke, E. “To restate or not to restate? Old wine, new wineskins, old covenants,
new ideas” [2009] 73 Conv 448
Cash, A. “Freehold Covenants and potential flaws in the Law Commission’s 2011
reform proposals” [2017] Conv 212

Cases & Statutes:

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Tulk v Moxhay (1848) 2 Ph 774

Smith & Snipes Hall Farm v River Douglas Catchment Board [1949] 2 KB 500
Federated Homes v Forge Lodge Properties [1980] 1 WLR 594
Roake v Chadha [1984] 1 WLR 40
Elliston v Reacher [1908] Ch 374
Rhone v Stevens [1994] 2 AC 310
Thamesmead Town Ltd v Allotey (2000) 79 P & CR 557
Halsall v Brizell [1957] Ch 169
Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798
Crest Nicholson Ltd v McAllister [2004] 1 WLR 2409
Wilkinson v Kerdene [2013] EWCA Civ 44
Birdlip v Hunter [2016] EWCA Civ 603 reversing decision in the High Court [2015]
EWHC 808

Law of Property Act 1925, ss 56, 78, 79, 84

Contracts (Rights of Third Parties) Act 1999, s 1
Land Registration Act 2002, ss 23, 29, 32, 34, 35

Questions for discussion:

1. Jack was the owner of a large house. In 2018, he divided his house into two
separate dwellings and sold part of it to Ben. In the transfer, Ben covenanted as
follows:
(a) To use the part transferred as a single dwelling house only;
(b) To maintain the shared roof over the house;
(c) To create a new, separate access way to his front door over a defined route.
Ben never moved into the house, but sold it immediately to Cilla. Cilla has not
proved to be a very satisfactory neighbour. Despite many reminders from Jack, she
has not got round to creating the new access way, and continues to use Jack’s
driveway for access, something which Jack had hoped would be unnecessary by
now. She seems to have a large number of friends who often stay with her, so Jack
never knows who is living next door. Sometimes as many as six people seem to be
sharing the two bedroom dwelling. Jack has complained, but to no avail. Lastly, a
storm damaged the roof a month ago, but Cilla has refused to contribute to the
repairs, saying that her house is quite dry.

Advise Jack.

2. “Our current view is that it is highly desirable to take steps to render certain
positive covenants enforceable against successors in title” (Law Comm Consultation
Paper No 186, para 7.76).

Discuss
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3. Sir Timothy Magnate is a wealthy property developer who has been purchasing
houses in Bath. He buys them in poor repair and then sells them at a profit. In 2015
he acquired three properties within a Georgian Crescent, Houses A, B, and C. After
refurbishment Sir Timothy sold property A to Della in January 2016, Property B to
Eve in January 2017 and kept C for himself.

Sir Timothy has constructed a lane through the rear gardens of A, B and C which
provides a convenient additional route for each house.

Each conveyance contained the following undertakings:

(i) To use the house for residential purposes only;

(ii) To use halogen lighting only internally (Sir Timothy has a commercial interest in
halogen light bulbs);
(iii) To maintain the Georgian style externally;
(iv) To contribute towards the maintenance of the lane.

In April 2019 Della sold A to Gerald and Sir Timothy sold C to his daughter Hebe
subject to the same covenants.

Gerald is running yoga classes from his house; he has also started to change the
exterior of the house. He is refusing to contribute towards the maintenance of the
lane. Hebe has just started to use very bright commercial quality lights inside and
around her property because she says she is scared of intruders.

Eve seeks your advice.

(taken and adapted from Spring 2016 Examination)

4. Ella is about to buy a house in a rural area surrounded by fields. The seller has
sent over a draft sale agreement containing a restriction that Ella is not allowed to
object to any future planning restriction to build on the fields.

Advise Ella whether this restriction would be binding on her and her successors in
title.
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TUTORIAL 7: LAND REGISTRATION AND REVISION

This tutorial revisits the key principles of Land Registration: the mirror
principle, the curtain principle and the insurance principle. It looks at the
different registers and how the registration of rights works in practice. The
tutorial revisits overriding rights and the problem they create in law. This is
also a revision tutorial and gives students a chance to review the whole of the
course.

Intended Learning Outcome

 To understand the key principles of Land Registration

 To describe the various registers at the Land Registry
 To explain overriding rights and how they work in practice
 To describe the mechanics of registration
 To revisit and explain overreaching
 To describe alteration and rectification of the register

Textbook reading:

Bray, Unlocking Land Law, 6th ed, Ch 3

Clarke and Greer Land Law 6th ed Ch 4

Dixon Modern Land Law, 11th ed, Ch 2

Cases & Statutes:

Williams & Glyn’s Bank v Boland [1981] AC 487

City of London Building Society v Flegg [1988] AC 54
National Provincial Bank v Ainsworth [1965] AC 1175
Abbey National Building Society v Cann [1991] 1 AC 56
Bristol & West Building Society v Henning [1985] 1 WLR 778
HSBC v Dyche [2009] EWHC 2954
Swift 1st v CLR [2015] EWCA Civ 300

Land Registration Act 2002, ss 4, 23, 26, 27, 29, 32‐36, 40‐45, 58 Sched 3, paras 1,
2, 3 Sched 4, Sched 8.
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Questions for discussion:

[You may bring questions to this tutorial for discussion on other topics]

1. Michael and Jane bought Gawcott Court in 2017. The transfer, which was
registered at the Land Registry, stated that they were legal and beneficial joint
tenants. The purchase price of £400,000 was provided with a mortgage from
Aylesbury Bank plc. for £200,000, £50,000 each from Michael and Jane, and
£100,000 from Albert (Jane’s father), who had been told by Michael and Jane that he
would have a quarter share of the property, and therefore a secure home.

Last year, Albert had a disagreement with his daughter Jane, and decided that he
would move to Canada to live with his son. He agreed with Michael and Jane that
they would repay him his investment in Gawcott Court as soon as the property could
be sold. Shortly before Albert left, Michael and Jane borrowed a further £200,000,
secured against Gawcott Court with a mortgage from Milton Keynes Finance Co
(MKFC). Michael and Jane did not tell Albert that they were borrowing this money,
nor did they disclose his existence or rights to MKFC. Albert was living at Gawcott
Court at the time. Michael and Jane have now been declared insolvent, and Gawcott
Court (which has not yet been sold) has been valued at £500,000.

Advise Albert.

What difference would it make if, instead of mortgaging the property to MKFC, and
before being declared insolvent, Michael and Jane had split up, and as part of their
separation arrangements, they had sold Gawcott Court to Helena (a rich widow, with
whom Michael says he now wants to spend the rest of his life) who paid a bargain
price of £300,000 because she was aware of Albert’s interest in the property?

Adapted from the Summer 2011 Examination

2. Tom and Sheila are married. They both live at 12A The Mews, Plato Street, South
Kensington, London. The freehold title to the property is registered in Tom’s name
alone. However, when the property was purchased in 2000 Sheila contributed 40%
of the initial purchase price by way of direct cash contribution.

Last year, without Sheila’s knowledge, Tom took out a mortgage loan from Sharp
Lenders Ltd in the sum of £50,000 in order that he could pay off certain credit card
debts that he had accumulated. By the mortgage agreement he was to repay the
capital and interest of the loan by regular monthly payments over a period of 10
years. Recently Tom has fallen behind with these payments and now Sharp Lenders
Ltd have instituted possession proceedings.

Sheila has just found out what has occurred and is very angry.
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(i) Advise Sheila as to whether she has any defence to the possession
proceedings.

(ii) What would have happened if Sheila had known about Tom’s mortgage
with Sharp Lenders Ltd and had signed a standard waiver form?

(iii) What would have happened if Sheila had been a registered co-proprietor
of the freehold title and the mortgage money was advanced to them both?
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TUTORIALS 8 AND 9: REVISION

Please bring questions to the tutorial for discussion in preparation for the
examination.

The links to the Land Law examination papers from 2019 and 2018 are set out
below. Select questions for discussion.

https://iweb.buckingham.ac.uk/exams/papers/20192ALAL001AWN.pdf

https://iweb.buckingham.ac.uk/exams/papers/20182ALAL201AWN.pdf.
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