Property Law Examiner Report 2017 A

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Examiners’ reports 2017
LA3003 Property law – Zone A
Introduction
General comments
The following comments are intended to provide guidance to students sitting this
examination in the future and feedback to students who sat this particular
examination.
1. Answer the question. Do not simply write out all the law you can remember.
The principal lesson from the June 2017 examinations is that many students had
decided that they were just going to write out all of the law that they could
remember, but did not answer the question.
(a) If you do not answer the question, then you cannot score a good mark. You
will not score higher than a 2:2 (at the highest) if you simply ignore the
question and write out your notes on the subject.
(b) If you write about things that are not relevant to answering the question
then that will lower your marks further. For example, if the question is a
problem question about whether the parties have a lease or a licence, if you
include a lot of information about implied covenants in leases or the nature
of legal estates, you will lose marks for irrelevance.
(c) The skill that is being tested here is the skill of identifying the issues in the
problem then applying the law to the analysis of those issues. So, if you talk
about things that are not relevant to those issues, you will lose marks for
irrelevance.
2. Length is not a virtue. Many candidates in the examinations had clearly decided
that a ten-page essay would necessarily score higher marks than a five-page
essay. As a result, they wrote pages and pages, which included a lot of irrelevant
material, a lot of repetition and so forth. (There is no set length requirement for a
good answer because different people have different sized handwriting, different
people use different layouts, etc. The module guide gives you guidance as to the
way of writing a good answer.) If you write a very long answer, it is likely that you
will include a lot of irrelevant material. Many essays (and problem-answers)
contained a lot of waffle that was irrelevant to the question, including a summary of
their notes or the module guide for about 90 per cent of their answer; many
repeated the same information over-and-over; and many made the mistake in point
(1) above. It is much better to think in the examination room about the best answer
to the question, instead of treating the words ‘you can start writing now’ as a
starter’s pistol in a running race and simply sprinting to write down everything you
can remember. By the same token, people who only wrote a half of one page were
very unlikely to score more than 10 per cent.
3. Write simply. Many students saw the examination as a challenge to write in their
most complex English. If you are trying to explain a complex argument then it is
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sometimes better to keep it simple. If, for example, your first language is not English
then do not feel the need to try to write complex English. You lose credit if you mis-
express an idea or if your ideas are unclear. Consequently, in such a situation, it is
safer to write in short, clear sentences. Only you can be the judge of your level of
comfort in this regard or how you choose to write. If you are under-scoring in your
marks then you might consider adopting a different writing style for writing about
law. For example, the English judge Lord Denning wrote in very short, assertive
sentences. They often had fewer than 10 words in them. (You can find any of his
judgments through the online library on the VLE.) Copy his written style if you are
unsure. Write assertively. Be concise. You do not need to be Shakespeare or
Dickens to get a first-class mark. You need to be focused. You need to be clear.
4. Precision is a virtue. You must use the correct terminology. So, if the question
is whether or not there is a ‘contract’ then keep using the term ‘contract’ do not start
talking about agreement, or compact, or arrangement. That sort of imprecision is
fine for a layperson but not for a lawyer. If you are talking about a ‘licence’ then do
not start using other terms. If you are talking about proprietary estoppel then do not
talk about the claimant ‘always getting a proprietary right’ – if you think about it, the
remedy for proprietary estoppel might result in merely a personal right to an amount
of money (e.g. Jennings v Rice) and therefore it is not true that a claimant always
gets a proprietary remedy. So, be careful to choose the correct word. Similarly, do
not over-write using excitable or verbose language that muddies the point you are
trying to make.
5. Discuss cases so that you examine the concepts in detail. Most students
dealt with the case law as though each case could be summarised in a single
sentence. That is very superficial. For example, when discussing Q4 and the
lease/licence distinction, it is important to discuss the facts of e.g. Antoniades v
Villiers, the salient facts of that case (and how they resemble or differ from the
problem) and crucially the detailed ideas in the judgment about how the law should
be applied in this area. To score high marks it is essential that you penetrate the
detail of the concepts in the judgments – you should glean this information from
reading the textbook and also from reading the judgments in the leading cases via
the VLE. Almost no students demonstrated any familiarity with the detailed
concepts set out in the judgments; preferring instead to use superficial, one-word
summaries of the cases.
For example, the different Houses of Lords in Street v Mountford, and in
Antoniades/Vaughan (in relation to the lease–licence distinction) set out a number
of circumstances in which they would find exclusive possession: for example, the
difference between a hotel room where cleaning services are provided whenever
the landlord chooses (a mere licence) and a home where limited cleaning services
are provided for payment of an extra fee (thus not interfering with exclusive
possession and so constituting a lease). Using that sort of detail in Q4 would have
led to a better answer. No students did this.
It is no surprise that all of the essay questions in this course take an extreme
stance: that is because they are encouraging you to set out an equally forceful
argument either in support of that proposition or against it. A good essay will
present such an argument in the form of a thesis and not simply rehearse your
notes or the material discussed in the module guide. It is, however, vital that you
answer the question that you have been set: it is not enough simply to write out an
essay which you have prepared in your head without any reference to the question
you have been asked.

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Comments on specific questions

Question 1
Fiona owned the freehold title to business premises from which she operated
the offices of a small charity providing counselling for homeless people. The
premises are registered land. At the rear of the property there was an
outbuilding. The outbuilding was on the opposite side of the long yard hidden
behind a row of tall trees. The outbuilding was on two storeys. The yard was
only used occasionally, mainly by employees of the charity who wanted to
smoke during working hours. Otherwise it was neglected.
Fiona decided to use the outbuilding to provide emergency care for homeless
people during the Christmas period in 2003. Fiona opened a soup kitchen on
the ground floor of the outbuilding. On the upper storey, she provided
temporary accommodation for two homeless people. These arrangements
were only supposed to last for one month until 31st January 2004. The
homeless occupants were Alan and Colleen. Each of them was provided with
a new bed which was advertised by the manufacturer as being ‘a temporary
bed designed only to be used for one or two nights at a time’.
On 1st February 2004, Fiona gave permission for Alan to continue to occupy
the outbuilding rent-free until the local authority provided him with permanent
accommodation. Fiona expected that this would only take one or two months.
She assumed, mistakenly, that Colleen had left the property because Colleen
had been absent from the premises for two months. Colleen went travelling
on occasion for about two months at a time. Alan spent £100 on fixing an
electrical problem on the upper floor of the premises which he occupied and
spent small amounts of money throughout his occupancy maintaining the
property in a habitable condition.
On 1st March 2004, Ed broke the padlock on the door to the outbuilding and
began to occupy the empty rooms on the ground floor of the building. Fiona
met Ed by accident in the yard on 1st April 2007 and told him that he would
have to leave the premises. Ed refused to leave on the basis that he was
homeless. Fiona said that Ed could remain in the property rent-free for one
month if he painted the ground floor of the outbuilding. Ed agreed. He bought
some paint and brushes but never finished painting the property.
All three occupants have remained in occupation, having nowhere else to go.
Advise Fiona (a) as to the claims of Alan, Colleen and Ed to adverse
possession, and (b) how your advice would differ if the land was
unregistered.
General remarks
The general remarks made in the Introduction to this report apply to this question, in
particular the comments relating to problem questions. A good answer to a problem
question involves the identification of issues in a problem, a layout of the law which
is relevant to addressing those issues (not simply a discussion of all the law), an
application of that law to the facts of the problem, and the identification of a
conclusion. Very few candidates did this. Instead they often wrote unstructured,
undirected summaries of the case law that they could remember.

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Law cases, reports and other references the examiners would expect you to use
Land Registration Act 1925, s.75; Limitation Act 1980; Land Registration Act 2002,
Sch.6; Land Registration for the 21st Century – A conveyancing revolution Law Com
No 271; Pye v Graham (2002); Powell v Macfarlane (1979); Techbuild v
Chamberlain (1969); Hounslow v Minchinton (1997), Bucks CC v Moran (1990);
Wallis’s Clayton Bay Holiday Camp v Shell-Mex and BP Ltd (1975).
Common errors
Common errors included a failure to address the problem in a structured fashion
and, in the case of some candidates, a simple failure even to discuss the question.
A good answer to this question would…
have divided between the various factual issues in the problem and would then
have identified the key principles in the law relating to adverse possession before
applying them to the facts of the problem.
Poor answers to this question…
simply scratched out a scattered account of some of the cases relating to adverse
possession without identifying the factual issues in the problem and then applying
the relevant law to them in a structured way. The poor answers to this question just
wrote as many notes as possible without addressing the question.
Student extract
The question concerns the area of adverse possession and whether Fiona
(F), the paper title owner will lose her title through adverse possession to
Allen (A), Colleen (C) and Ed (E) in the respect land they each occupy.
…According to Powell v McFarlain [sic] to prove adverse possession the
burden of prove [sic] is on the squatter in this case A. A must prove that he
during his stay at the premises he had factual possession and also had the
intent to possess.
In Redhouse Farms v Catchpole it was held that the evidence necessary to
prove factual possession will usually vary according to the [nature of the]
land.
…Regarding the issue of intent to possess on the part of A, the fact that A
was given a licence to stay will amount to permission. Possession must be
adverse as established in BP Properties v Buckler.
Comments on extract
The opening paragraph is good in the sense that it identifies the general issue – of
adverse possession – which arises here; but it is less good in the sense that it
contains grammatical errors (e.g. ‘in the respect land they each occupy’). It is not
helpful to make such errors at the start; although it should be noted that this
question still scored a 2:1 despite that.
The second paragraph is good at setting out the legal tests. The third paragraph is
also clear on setting out the law. In both paragraphs there are numerous
grammatical errors, but the main point is clear.
The fourth paragraph is good because it turns around to applying the legal test to
the facts of the problem and asserts the argument that there cannot be adverse
possession here because there was permission. One of the strengths of this answer
is that there are lots of cases cited and that some of those cases (it would be better
if it had been all of them) are then applied to the facts of the problem.

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Question 2
EITHER
a) ‘The Land Registration Act 2002 has failed to achieve its objectives.
Those objectives were necessary for the orderly administration of
land ownership in England and Wales but they are failing to
anticipate all of the problems which are connected with land
transactions.’
Discuss by reference to any aspect of the law except adverse
possession.
OR
b) ‘The principal strength of the system of unregistered land was the
balance it struck between flexibility and certainty. Unlike the land
registration system, the law on unregistered land enabled the courts
to reach a fair outcome in difficult cases. Nevertheless, it also
permitted the protection of the most significant rights.’
Discuss by reference to any aspect of the law except adverse
possession.
General remarks
The general remarks in the Introduction to this report apply to essays on this topic:
especially those under headings A1, A2, A3 and C. Candidates tended merely to
write out all the law they could remember without any attempt to address the
question that they were asked to discuss.
Law of Property Act 1925; Law of Property (MP) Act 1989; Land Registration Act
2002; Land Registration for the 21st Century – A conveyancing revolution Law Com
No 271; Chaudhary v Yavuz (2011); Chhokar v Chhokar (1984); Swift 1st v Chief
Land Registrar (2015); Mortgage Express v Lambert (2016).
Common errors
The principal errors were a failure to address the question that was asked (where
candidates preferred instead simply to write out all the law they could remember)
and a failure to identify a clear thesis as set out in section C in the Introduction.
(A) have identified the objectives of the Land Registration Act 2002. It would then
have considered the problems with land registration. The Pre-exam update for this
year identified case law relating to indemnities for errors on the Land Register – that
was one example of a shortcoming in the system. Cases like Midland Bank v Green
and Peffer v Rigg also identified situations in which issues of fairness intruded into
the land registration system.
(B) A good answer to this essay would have considered cases in relation to
unregistered land, which provided for fair outcomes to cases, as opposed to
applying rigid rules. Cases such as Kingsnorth Finance v Tizard demonstrated the
need for old concepts of notice and constructive trusts to achieve fair outcomes in
particular cases.
(there were many very poor answers) were (a) unstructured, (b) simply wrote out all
the law their authors could remember, and (c) did not even mention the issues
raised in the essay title.

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Student extract
The Land Registration Act 2002 builds on the 1925 reforms contained the
Law of Property Act 1925 and the Land Registration Act 1925. The LRA aims
to improve the land registration system by comprehensively reflecting the
interests in titles in the registry and by reducing the number of registrable title
for manageability of the system and improved ease of sale and other
passage of land. These objectives are to be met through the mirror the
curtain principle and the insurance principle.
Comments on extract
This is the opening of an essay. It fails to set out a thesis which addresses the
question that was asked. Instead it makes general, waffly reference to the names of
the different Acts. The second long sentence makes grammatical mistakes. It also
summarises the purpose of the legislation in an ungainly way. It makes no mention
of things like the plan to create e-conveyancing and how great the change was in
2002 from the 1925 legislation.
Question 3
Jack was the sole owner of the freehold title to a house on registered land.
After meeting on holiday, Jack and Diane began a relationship in August
2013. In March 2014, Jack asked Diane to move into his house with him. This
required Diane to sell her home for £125,000.
Diane was concerned about her rights after she moved into Jack’s house. In
April 2014, after an evening drinking wine at Diane’s birthday dinner, Jack
said to her: ‘You can think of this as being your home too. I want us to have a
meaningful relationship.’
Diane had a son, Billy, from a previous relationship. Billy was aged 5. He had
to move school as a result of this move.
Diane wanted to pay for the house to be redecorated so that it was more to
her taste. In March 2015, she asked Jack to give her permission to do this
because, as she put it: ‘That would make me feel more like this is my home
too’. Jack allowed her to refit the kitchen, the master bedroom and its en suite
bathroom at a total cost of £40,000. Diane paid for the entire £40,000. The
house had five bedrooms and eight other rooms.
In March 2016, Jack decided to construct a guest house on the land attached
to his house. Diane was a qualified architect. She designed the bungalow. It
was a single bedroom bungalow in the modernist style, with a kitchen and a
living-room looking over the large gardens. The bungalow was special in that
it required no heating and received all of its power from solar panels on the
roof. These features were the result of Diane’s special knowledge and skills
as an architect.
Diane supervised the construction of the bungalow. The construction work
cost £100,000, which was funded half by Jack and half by Diane. Diane
supervised every stage of the construction process and fitted the solar
panels herself. The construction work was completed four months ago. On
regular occasions during the construction work, Jack said to Diane: ‘You are
amazing. No one else could do what you do. This really is your guesthouse’.
Recently, Jack has begun a new romantic relationship and wants Diane and
Billy to leave the property.
Advise Diane on her rights under proprietary estoppel principles.

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General remarks
particular the comments relating to problem questions. A good problem question
identifies issues in the problem and then deals with them one-at-a-time, applying
the appropriate law to them in sequence, and coming to clear conclusions on each
issue.
Re Basham, Gillett v Holt, Yaxley v Gotts, Lim v Ang, Crabb v Arun DC, Stack v
Dowden, Jones v Kernott, Thorner v Major, Cobbe v Yeoman’s Row.
Common errors
The principles of proprietary estoppel were identified in the module guide, the
textbook and the case law as falling into a clear structure: (1) the demonstration of
representation, reliance and detriment to make out the estoppel; and (2) the issue
as to the appropriate remedy (ranging from rights to the entire property through to a
purely financial remedy). Poor answers (and there were many) failed to use this or
any structure. Many candidates failed to mention the issue of remedies at all.
have begun with a search for: (i) representation (or assurance); (ii) reliance on that
representation; and (iii) detriment by looking at the facts. A good answer would
have divided between the circumstances in 2014, 2015 and 2016 one after the
other so as to examine whether each year gave rise to an estoppel. In 2014, there
was no detriment and the representation was weak because it did not offer property
rights. In 2015, there might have been detriment because Diane paid for the work,
but there is need for analysis about whether or not Jack makes a meaningful
representation. In 2016, the work done by Diane was more substantial but it could
be argued that it was only slightly more than Mrs Rosset did in Lloyds Bank v
Rosset. A good answer would then have considered the potential remedies: here,
that might have led merely to a payment of money as under Jennings v Rice.
failed to go through the three stages of the estoppel and consider the facts of the
problem through that lens. Poor answers failed to consider the available remedies.
Student extract
Proprietary estoppel is a creature of equity based on the concept of
unconscionability.
Lord [illegible] the five probanda in Wilmot v Baker were considered onerous
thus their abandonment and the adoption of Oliver J in Taylor Fashions that
for a claimant to prove proprietary estoppel he had to establish that he had
been given an assurance that he has been relied on to detriment and that
given all the circumstances it would be unconscionable for the person giving
the assurance to retract same.
Comments on extract
The first paragraph is very short – only one sentence. That sentence makes an
assertion about the law (the concept of unconscionability) which is contested in the
case law – and no authority is given here. That is a bad start. This opening
sentence is also weak – it does not set out an argument.
The second paragraph shows some good knowledge of the law but it is very poorly
written. This is a good example of a situation in which the student would have been
better advised simply to write in short sentences: ‘The case of Wilmot v Barber
created a test based on five probanda. Those five requirements were difficult to
prove. [Explain why – they required proof of a mistake.] That approach was

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displaced by an approach based on unconscionability. Oliver J in Taylor Fashions

set out this new approach [explain the new approach, then show why you think it is
better].
Question 4
Karen and John are an unmarried couple who are looking for their first home
together. They have found a flat advertised on the internet. Spyros is the
landlord. The advertisement for the flat read: ‘Flat available. Would suit young
couple. Cheap rent.’
Karen and John are eager to go into occupation of the flat as soon as
possible. They have been given a document which they are required to sign
by Spyros which contains the following terms:
‘1. This agreement shall not constitute a lease. The rights of the
occupants are as licensees only.
2. The occupants shall be required to vacate the premises every
Thursday morning between the hours of 10.00am and 11.00am so
that the property can be cleaned.
3. The landlord reserves the right to go into occupation of the
property at any time.’
The premises consist of one bedroom, one bathroom and one large room with
a combined kitchen and living room. The bedroom contains one double bed
(i.e. large enough for two people to occupy at once). The sofa in the living
room can be opened out into a bed for two people.
When Karen asked Spyros about clause 3, he said: ‘Don’t worry about that. I
don’t intend to come and spend the night with you.’
Advise Karen and John as to the nature of their rights if they entered into this
agreement.
General remarks
particular, the comments relating to problem questions.
This problem asks you to analyse the facts and decide whether there is a lease or a
licence here. In general terms, the candidates were very poor at applying the
detailed facts of the cases (e.g. Street v Mountford, Antoniades v Villiers and AG
Securities v Vaughan and the others identified in the module guide) to the facts of
the problem. The key skill in answering problem questions is: (i) to know the tests in
the decided cases; and (ii) to understand the salient facts in those cases, and then
to compare the salient facts of those cases with the facts of the problem so as to
advise the parties how their case would be decided by the courts. Candidates were
poor at discussing the facts of the problem in light of the facts of the decided cases.
Street v Mountford; AG Securities v Vaughan; Antoniades v Villiers; Aslan v
Murphy; Mikeover v Brady.
Common errors
Common errors included failing to address the precise facts of the problem. For
example, there is an obligation to vacate the premises at specific times. This
concept was discussed in cases such as Aslan v Murphy (in the module guide).
Most candidates failed to consider whether this meant exclusive possession was
negated, or whether it was still possible because the need to specify the times when
the property must be vacated presumed that otherwise there was exclusive
possession.

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identify the salient facts of the decided cases and compare them to the facts of the
problem. That is a core legal skill. It would explore the detailed judgments in the
leading cases and use the debates in those cases to analyse the facts of this
problem.
simply wrote out all the law that the candidates could remember without applying it
to the facts of the problem. They used imprecise expressions like ‘exclusive
occupation’ when ‘exclusive possession’ was meant.
Student extract
This question is about the lease and licence distinction. Lease is a proprietary
right and comes under statutory protection and also binds future transferee of
the law. But a licence is just a personal right with limited remedy. It would be
in Karen and John’s interests to argue for a lease.
To meet the requirement of a lease, Lord Templeman in Street v Mountford
clearly stated that a lease required the tenant to have exclusive possession
for a term at a rent.
As Lord Templeman reminded us, we should not look at the labelling in an
agreement but at the substance to determine if it is a lease or licence. Hence
clause 1 [on these facts] is not conclusive. For Karen and John to argue they
had exclusive possession when both are occupying the same premises, it is
necessary that they prove a joint tenancy with unity in possession, interest,
title and time. In Antoniades v Villiers, the couple signed two interdependent
agreement and like Karen and John intended to use the premises as a
matrimonial home. It was upheld as a lease in that case. So long as they are
jointly and severally liable for the rent payment and deposit. John and Karen
would be likely to satisfy that on these facts. Mikeover v Brady is of interest
here.
Comments on extract
A good problem answer follows the following pattern. First, it identifies the specific
issue in the problem that is being addressed. In any problem question there are
probably four or five main issues. The next three steps should be applied to one
issue at a time. Secondly, it sets out the applicable law for addressing that particular
issue. Thirdly, vitally, it applies that applicable law to the facts of the problem and
explains how the courts would resolve the issue set out in the problem. In doing this
you should discuss the relevant facts of the problem that would be important in
answering that aspect of the problem. Fourthly, it must come to a conclusion. As a
fifth element, a good answer might consider any journal literature or other academic
points (or dissenting judicial opinions) relevant to that issue which suggest that the
law is optimal or sub-optimal in the context of the problem.
The strength of this answer is the way in which the candidate identifies the key
issue, sets out the general legal test, before drilling down into the sub-issue of joint
tenancy, setting out the legal test and then applying it to the facts. The problem
here is that the candidate did not go into sufficient detail on the facts. The candidate
should have explained what about Clause 1 was problematic and why s/he
considered that it satisfied the test in Street v Mountford. Clause 1 labelled the
agreement as a licence – so, the candidate should have considered what on the
other facts of the problem would cast doubt on this being a licence, i.e. whether the
substance of the agreement was a lease, e.g. by virtue of the ability to occupy the
property by the landlord being a sham.

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Question 5
George owns the freehold title to No.1 Thresher Cottages. Angie owns the
freehold title to No.2 Thresher Cottages. The two cottages are semi-detached:
that means that they share a roof and there is an internal wall between the
two cottages which runs from the foundations to the roof.
Both cottages were built in 1982. The land is registered land. There are
identical freehold covenants over both cottages which read as follows:
1. The freeholder shall maintain a hedge of conifers between the
gardens of the two cottages.
2. The freeholder shall refrain from causing any harm to any
neighbouring property or neighbour.
3. The freeholder shall ensure that no noxious substance is
allowed to pass into the sewerage and waste water system.
George bought his cottage in 2001 from the original owner, Steve. Angie
bought her cottage in 2012 from the original owner, Teri.
George refuses to pay for the maintenance of a hedge between the properties
and wishes to install a wooden fence instead. Angie prefers a high conifer
hedge. Angie insists on a hedge so that she can sunbathe in the garden
without being seen.
George does not see the need to keep his house clean. He stores open
containers of pet food in his attic. As a consequence, he has a large number
of mice living in his roof space. Because the internal wall in the roof space
has not been properly maintained, the mice can escape into Angie’s property
without difficulty. Angie has a phobia about mice and claims to be suffering
from depression as a result of the number of mice which have appeared in
her home. Angie can prove that the mice originated in George’s house.
When Angie cooks, she empties cooking fat and other refuse down the sink.
Over the months, this has built into a large ball of congealed fat and other
substances which have blocked the sewer. The blockage is under George’s
cottage. Angie refuses to stop disposing of cooking fat in this way and she
refuses to pay for any remedial works on the shared sewer.
Advise Angie and George as to their rights.
General remarks
Law of Property Act 1925, ss.78 and 79; Smith & Snipes Hall Farm v River Douglas
Catchment Board (1949); Rogers v Hosegood (1900); Federated Homes v Mill
Lodge Properties (1980); Re Dolphin’s Conveyance (1970); Roake v Chadha
(1984); Tulk v Moxhay (1848); Rhone v Stephens.
Common errors
Common errors included failing to address the precise facts of the problem.
identify the salient facts of the decided cases and compare them to the facts of the
problem. That is a core legal skill. It would explore the detailed judgments in the
leading cases and use the debates in those cases to analyse the facts of this
problem.
10

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simply wrote out all the law that the candidates could remember without applying it
to the facts of the problem.
Student extract
To determine whether the original parties can sue for breach of covenant, the
burden and benefit of each covenant must be passed.
Covenant 1 is a positive covenant that was breached by George. Can Angie
sue George for breach of covenant 1?
The doctrine of mutual benefit and burden can be used to pass the burden of
covenant 1. Where the covenantors receive the benefit, they cannot refuse to
take the burden. In Halsall v Birzell the benefit was the provision of roads,
sewers and protection from flooding and the burden was to pay the costs to
maintain these services. In the present scenario, the benefit of the hedge of
conifers would be for privacy purposes and the burden would be to pay the
cost to maintaining the hedge of conifers. But, the facts indicated that George
refused to pay for the maintenance of the hedge only because he wanted to
install a wood fence instead, not because he was refusing to take the burden.
However, the fact that Angie prefers the hedge and this is the covenant that
Steve created and George covenanted to do, he would therefore have to take
the burden of paying the maintenance costs of the hedge because it would
serve the same benefit as the wooden fence, which is for privacy purposes.
Therefore, the burden of covenant 1 can pass.
Comments on extract
The candidate appears to have understood the law in general terms from the first
two paragraphs. However, the rest of the extract is problematic. (1) There are few
cases mentioned here. Only one case is used as the basis of this argument and,
while the student does a good job of explaining the facts, s/he does not explain
what the principle stemming from that case really is. (2) Similarly, the student does
not explain the rule governing the transmission of the benefit and separately the
burden of this covenant. There should have been mention of s.78, etc. in relation to
the benefit of the covenant. (3) As to the burden, there needed to be a discussion of
the nature of this covenant. The student concludes too quickly that this is a positive
covenant, without explaining why (i.e. because it requires the payment of money or
the expenditure of effort to maintain a hedge). The burden of a positive covenant
will not pass after Rhone v Stephens (despite the drafting of s.79 on its face) and
yet the student concludes that the burden of this positive covenant will pass, without
explaining why by reference to the case law or statute. Therefore, because the
student failed to set out all of the relevant law on the transmission of both benefit
and burden, s/he failed to answer the question correctly. (4) The failure to mention
enough law meant that this student was on course only for a third class mark. (5)
What the student does do well is to try to address the facts of the problem – but
even then the arguments are weakly expressed, e.g. the question of the fence. The
argument would be that the construction of a fence is equivalent to the maintenance
of a hedge and therefore that it achieves the underlying purpose of the covenant,
and therefore that the covenant has not been breached at all (whereas the student
states at the start of the third paragraph that there has been a breach). The real
problem here is that the student contradicts his/her own argument.
Question 6
Tariq owns the freehold title to a detached house, Greenacre, in a rural part of
Devon, England. Greenacre is registered land. The house is surrounded by
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one acre of gardens and grassland. Tariq bought Greenacre from Dominic in
2010. Greenacre had formerly been a part of the land known as Brook Farm.
Dominic owns the freehold title to the farm, Brook Farm, which borders
Greenacre. Dominic inherited Brook Farm from his father. Brook Farm is
registered land.
Dominic keeps cattle on his land. Once a week since 2010, Dominic has led
his cows from Brook Farm across grassland at the edge of Greenacre to
another field which he also owns on the far side of the main road. Dominic
claims that thirty years previously his father used to walk his cattle along an
identified path across the land that is now Greenacre. He is unable to prove
this. Dominic also claims that ‘it is essential to be able to walk my cattle to the
other field because my main field cannot sustain grazing for my cattle all year
long’.
Tariq claims that the entirety of Greenacre is needed for his future business
plans, and therefore that he cannot have cows walking across it. He intends
to construct small buildings for tourists to occupy for holidays.
Tariq also wants to attach a large sign advertising this tourist accommodation
on the wall of a barn on Brook Farm. There had previously been a sign
attached to that barn before Tariq had acquired Greenacre. The sign had
advertised the farm shop which had formerly been operated by Dominic’s
father on Brook Farm. That sign was still attached to the barn when Tariq
went into occupation of Greenacre. Dominic took that sign down six months
ago.
Tariq has planted a thick line of prickly holly bushes across the path that
Dominic uses to move his cattle to the alternative field and he has placed a
padlock on the gate leading across Greenacre from Brook Farm.
Advise Tariq and Dominic as to their rights.
General remarks
A good problem answer follows the following pattern. First, it identifies the specific
issue in the problem that is being addressed. In any problem question there are
probably four or five main issues. The next three steps should be applied to one
issue at a time. Secondly, it sets out the applicable law for addressing that particular
issue. Thirdly, vitally, it applies that applicable law to the facts of the problem and
explains how the courts would resolve the issue set out in the problem. In doing this
you should discuss the relevant facts of the problem that would be important in
answering that aspect of the problem. Fourthly, it must come to a conclusion.
Law of Property Act 1925, s.62; Hill v Tupper (1863); Re Ellenborough (1956);
Wheeldon v Burroughs (1879); Wong v Beaumont (1965); Wood v Waddington
(2015); Ward v Kirland (1967); Platt v Crouch (2003); Alford v Hannaford (2013);
Batchelor v Marlow (2001); Moncrief v Jamieson (2007); R Square Properties v
Nissan Motors (2014).
Common errors
The most common errors were stylistic: i.e. failing to address the facts of the
problem appropriately.
have considered whether there was a valid easement to walk cattle across the land
(or whether it was valid to plant holly and padlock the gate) and whether there was
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an easement to erect a sign. A good answer would set out the Re Ellenborough
Park requirements for easements and then consider what sort of easement might
be available here.
failed to consider which category of easement might be available here. For
example, whether it was ‘necessary’ for the cattle to pass across this land under
Wong v Beaumont, etc. or whether the Moody v Steggles requirements for an
easement in relation to a signboard were satisfied.
Student extract
In order for Dominic to enforce the easement for cattle grazing it must be
capable of being an easement. Secondly, he must have acquired the
easement.
When looking at whether it is capable of being an easement, the right
claimed must meet the Re Ellenborough Park criteria. There must be a
dominant and servient tenement and it must be identified prior to claiming the
right (London Blenheim v Ladbroke) (there it was not identified) Here it is
clearly identified, there is a dominant and servient tenement. In Dominic’s
case, his land would be the dominant tenement and George’s would be the
servient tenement. It must also accommodate the dominant tenement. It must
touch and concern the land unlike in Hill v Tupper (there it didn’t serve the
dominant tenement as it did in Moody v Steggles where…
Comments on extract
The strength of this answer is in the way in which the candidate (1) set out the
elements for an easement one at a time before (2) explaining how each element
is/is not satisfied on the facts of the problem and then (3) moves on to the next
issue. This candidate is very focused on answering the problem question. That is
very good. Instead of writing long descriptions of the law like a textbook (which
simply repeats the module guide), the law is only set out here so that it can be used
to analyse the issues in the problem.
The principal weakness is the way in which the candidate wrote overly long
sentences. The student’s grammar is very poor in that s/he wrote sentences which
did not end, but rather ran into the next idea. It would have been much better to
have written short sentences of about ten words each: ‘The issue is whether this is
an easement. To be an easement, it must satisfy the four Re Ellenborough Park
criteria. The first requirement is that there must be a dominant and a servient
tenement. On these facts there is a dominant tenement because…’
Question 7
‘The rights of mortgagees are too extensive. The law on mortgages is simply
oppressive of mortgagors and is insufficiently concerned with the needs of
the occupants of ordinary homes. Traditional mortgage law is simply not fit
for the 21st century.’
Discuss.
General remarks
question that they were asked to discuss.
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Samuel v Jarrah Timber (1904), Reeve v Lisle (1902), Kreglinger v New Patagonia
Meat (1914), Fairclough v Swan Brewery (1912); Four Maids v Dudley Marshall
(1957), s.101 et seq. of LPA 1925, Palk v Mortgage Services Funding (1993);
Western Bank v Schindler (1977); Quennell v Maltby (1979).
Common errors
The most common error was simply not addressing the question.
have addressed the key factors in the question: whether the rights of mortgagees
are ‘too extensive’, whether the law here is oppressive (as discussed in Palk), and
whether that law relates to the ‘needs’ of occupants. Almost no candidates did that,
and consequently their marks were poor.
failed to address the precise terms of the question. Poor answers failed to set out
the appropriate law and also failed to evaluate whether or not that law was
‘oppressive’, ‘excessive’ and so forth.
Student extract
A mortgage is the conveyance of an interest in land as security for the
payment of a debt or a discharge of some other obligation. The mortgagor is
referred to as the borrower or the individual who takes out the loan and the
mortgagee is the lend[er], which is the financial institution lending the money
to the mortgagor. The mortgagor’s interest in land is based on the equity of
redemption, which is the value of the land after the debt attached to it is paid.
The key feature is for the mortgagor to redeem the debt in order to reclaim
the interest in land. Upon the operation of the enforcement of terms in the
mortgage agreement, the rights of the mortgagor as well as the rights of the
mortgagee must be recognised.
The mortgagor has an equitable right to redeem and this right to redeem
must not be postponed in a manner that is illusory, and there must be no
conditions which restrict this equitable right to redeem. Any term or provision
in the mortgage agreement which restricts the right to redeem is termed as a
‘clog’, which was evident in the case of Biggs. There will not be an illustration
on the rights of the mortgagor and how the law on mortgages simply
oppresses these rights.
Under the common law, the mortgagor has six months to complete payments
of the mortgage in order to be granted the right to redeem. If the six-month
period is determined and the mortgagor fails to make the payment before the
end of the six-month period, the mortgagor can lose the property. …
Furthermore the mortgagor can postpone the right to redeem…
Additionally, a mortgagor can grant the mortgagee the benefit of doing
something on the property in addition to the payment of the loan and its
interest. …
Mortgagers also have the right to possess, where they are entitled to receive
any rent or profit that derives from the use of the property, where they can
sue for trespassing on the land/property and they have the right to create
valid leases…
Restraint of trade, where the mortgagor is restrained from pursuing his
trade…
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Even though mortgagees have their own rights that become exercisable upon
the mortgagor failing to fulfil his obligation…
Comments on extract
(1) This script was very light on legal references: there were no statutes referred to
and very few cases. (2) When cases were mentioned, they were mentioned only in
passing with no reference to the legal detail. (3) The reference in the question to
‘oppressive’ use of rights in this context is a quote from Nicholls VC in Palk – a
good student might have noticed that reference. In this essay there is only one
mention of the concept of oppression. (4) Importantly, this essay also fails to
consider whether there is anything ‘oppressive’ – an extreme word – about the way
the law operates as present. It is essential to discuss the language in the question
and to answer the question you have been asked. The student should have
discussed whether or not the law was truly ‘oppressive’ (as some judges have said)
or merely part of what one might expect from the open market in housing in
England and Wales. (5) This student is merely writing out all the law s/he can
remember on mortgages but without going into detail and without citing specific law.
(6) This script is well written – in the sense that its use of language suggests
someone whose use of English is very good and who can e.g. write quite long,
coherent sentences. Nevertheless, that does not divert the examiners’ attention:
this script could not score more than a mid-range 2:2 because of the five preceding
defects. A complete lack of discussing legal concepts in detail (and omission of all
statue) mean that it was on the borderline between a third-class and a lower
second-class.
Question 8
‘The law on co-ownership of the home is of limited application in the modern
world. The concepts of joint tenancy and tenancy in common belong to
another age. However, the Trusts of Land and Appointment of Trustees Act
1996 did achieve a progressive recognition of the rights of beneficiaries
under trusts of land which empowers the court to protect the vulnerable in
their homes. Unfortunately, the case law has not yet shown sufficient concern
for the protection of occupants over other interests.’
Discuss.
General remarks
question which they were asked to discuss.
Candidates were expected to consider whether the case law concepts were better
or worse than the statutory code under the 1996 Act. That should involve evaluation
of the strengths and weaknesses of each system. Instead, students merely wrote
out their notes. In many cases, those notes were written in an unstructured format,
which seemed to be a mere ‘stream of consciousness’, without any organisation or
a thesis.
Trusts of Land and Appointment of Trustees Act 1996, ss.2, 14 and 15; Jones v
Kernott; Re Citro; Re Holliday.
Common errors
Common errors included a failure to identify an argument at the outset and to
pursue that argument throughout the essay. Instead, most students simply wrote
out their notes on the difference between joint tenancy and tenants in common, the
process of severance and the rights created under the 1996 Act.
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would exhibit the good features of an essay set out in the Introduction to this report.
failed to address the question asked and failed to be precise in their discussions of
the legal concepts. They also failed to explore the issues discussed in the case law
in detail.
Student extract
The law of co-ownership is complex. The Trusts of Land Act 1996 organised
the law dealing with trusts on land. The Act was to give beneficiaries the right
to live in the house held on trust. The purpose was to give them rights.
The concept of joint tenancy arises in four circumstances: (i) unity of time, (ii)
unity of title, (iii) unity of possession, (iv) unity of the same interest in the
property. The claimant must show that he have all four of these requirements.
The joint tenants have right of survivorship. This means that the last living
partner owns the whole property. Each partner has no separate right but they
have rights together under joint tenancy. Tenancy in common is where the
partners have separate rights.
Comments on extract
This opening to the essay does not address the question which has been asked.
This essay does not establish a thesis (or argument) at the outset. It is important
that the essay should do this. Instead, the candidate simply wrote out all of the
information s/he could remember – perfectly accurately – in relation to the law in
this area. The mark could not exceed a 2:2 as a result.
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LA3003 Property law – Zone A

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displaced by an approach based on unconscionability. Oliver J in Taylor Fashions

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