Examiners’ reports 2022

Examiners’ reports 2022

LA2003 Property law – Zone B

Introduction
The format of this year’s question paper is similar to recent years. It reflects the
syllabus as set out in the Property law module guide 2021/22. The module guide is
an important resource. It introduces legal material that is relevant to the syllabus
and identifies further reading material in textbooks, cases and secondary sources.
There are also supporting and additional learning resources on the VLE. The
module guide therefore repays careful attention. In particular, Chapter 1 contains
advice on how to study and respond to examination questions in Property law.
There are also supporting and additional learning resources on the VLE. You
should also refer to the Assessment Criteria that apply to assessed work. It is not
the aim of this report to provide model answers. The guidance and suggestions it
contains are simply that. They offer pointers designed to help you think about
productive ways of approaching the type of questions you may encounter in the
examination. The feedback on specific questions sometimes contains questions for
self-reflection. These may also suggest fruitful directions you may wish to take
when studying the topic.
Much of the legal information in answers was sound. The better answers
highlighted that some candidates are capable of going beyond merely identifying
relevant legal principles and case law. They contained critical analysis, sometimes
assisted by insights from academic writing. Where answers integrated secondary
sources into the advice and arguments, they had the greatest impact. It is worth
emphasising that examiners are looking for competence in important technical
skills, including academic problem solving and an ability to construct well-directed
arguments in response to the ideas and terms of the essay title. It is important to
develop these skills during your studies. The better scripts produced relevant and
analytical answers. By contrast, a considerable number of answers either repeated
pre-prepared material or contained a series of disjointed and unrelated legal
snippets about the topic. Reframing or completely ignoring the terms of the question
is poor technique. Essays of this kind do not achieve good marks. Answering
questions is not simply about regurgitating legal material, even where that
information is potentially relevant. It is about showing understanding and critical
awareness. Of course, it is crucial to have accurate legal knowledge, the more
nuanced and detailed it is the better. However, you need to use it to engage with
the issues the question raises. Otherwise, all your preparatory work and knowledge
will go to waste.
One thing that may help to improve the calibre of your answers is planning them
carefully. Take time to think about the material from the perspective of the question.
You should then make a clear plan before you start to write, one that settles on a
coherent and sensible structure for your answer. A plan allows you to decide in
advance which points you want to make in your essay. There is greater credit
available for answers that are comprehensive in their coverage of valid and relevant

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points. Referring to the plan as you write can help keep the answer on track. It also
allows you to make sure you are explicitly tying all the points to the issues raised by
the terms of the question.
This year fewer students failed to follow important instructions, resulting in a
reduction in instances where only three questions were attempted. However, a
considerable number of answers ignored one part of a multi-part question. These
are both ways in which marks can be lost unnecessarily. They may adversely affect
your grade and sometimes even make the difference between success and failure.
It is important to express everything you say with care. The quality of English
matters because it affects the clarity of your answers. You need to convey what you
say plainly and precisely. This is an important academic and lawyerly skill. It
ensures that the examiners can follow everything you say. Of course, they
recognise that you are working under the pressure of time. However, this does not
excuse poor grammar, spelling, or a significant number of typographical errors.
Moreover, it is impressive to read well-presented answers, including those that
follow recognised citation practices and employ paragraphs appropriately. It is
permissible to resort to note form answers as a matter of last resort but only for the
final answer. It is important to make the notes count by using them to show how the
legal ideas apply to the facts/terms of the question.
Please note:
(a) references to the MODULE GUIDE are to the Property law module guide
2021/22 (‘module guide’);
(b) any errors that were present in the student extracts in the following section
(‘Comments on specific questions’) have not been corrected; and
(c) references to names of statutes commonly encountered in the Property law
module (including the Land Registration Act 2002, the Law of Property Act
1925 and the Trusts of Land and Appointment of Trustees Act 1996) are in
abbreviated form.

Comments on specific questions

Question 1
Titmus was the owner of the registered freehold of Willow, a large country
house set in extensive grounds. Willow’s grounds include Fenners Fields, a
cricket pitch and pavilion. In 2007 Titmus sold Fenners Field to Botham. As
part of the conveyance Botham agreed to the following covenants:
(a) not to allow any structure on Fenners Field to fall into disrepair;
(b) to use Fenners Field only for cricket matches to be played between
the hours of noon and 6pm; and
(c) to allow the current owner of Willow to present the cups at the annual
cricket awards ceremony organised by Botham and his successors in
title.
In 2015 Titmus died and left Willow to his son, Hendry, who, like his father, is
a cricket fan. Six months ago, Botham sold Fenners Field to Rachel. Rachel
immediately installed floodlighting and started to use Fenners Field for
cricket matches between the hours of 6pm and 10pm. Rachel has since
refused Hendry’s request to repair the pavilion’s leaking roof, which was
damaged by a tree that blew down in a recent storm. Last week, Rachel

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placed a notice in the village newsletter announcing that the Vice President of
the Ladies’ English Cricket Board will be presenting the cups at this year’s
cricket awards ceremony.
Advise Hendry.
General remarks
This is a standard problem question on the enforceability of covenants by
subsequent owners of the land to which the covenants relate. Chapter 9 of the
module guide introduces the relevant law.
Law cases, reports and other references the examiners would expect you to use
Tulk v Moxhay; Austerberry v Oldham Corporation; Rhone v Stephens; Haywood v
Brunswick PBS; P&A Swift Investments v Combined English Stores Group; Smith
and Snipes Hall Farm Ltd v River Douglas Catchment Board; Federated Homes v
Mill Lodge Properties; Roake v Chadha; Crest Nicholson v McAllister; Newton
Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd; ss.56, 78, 79 and
136 of the LPA 1925; and s 1 of the Contract (Rights of Third Parties) Act 1999.
Common errors
Some of the more common errors were: addressing benefit or burden but not both;
giving too little attention to applying the principles to the facts; misunderstanding
how and when to apply the mutual benefit and burden principle; and overlooking the
need under the LRA 2002 for the burden of a restrictive covenant to be protected on
the register.
A good answer to this question would…
recognise that R is already in breach of the first two covenants, and that she is
planning to flout covenant (c). Therefore, the thrust of the advice needs to explore
what H needs to show to be able to enforce some or all of them against R. Answers
must therefore consider how both the benefit of the covenants has passed (T to H)
and the corresponding burden (B to R). Taking benefit and burden in turn is also a
neat structure for the advice.
The burden of all three covenants cannot pass at common law (Rhone). Might
equity assist and, if so, in respect of which covenants? Good answers will start by
construing each covenant because the other equitable factors apply only to
restrictive covenants (accommodating the dominant tenement; the existence of an
intention for the burden to run with the land; and the need to protect the burden to at
the Land Registry). The substance (as opposed to the language) of covenant (a)
requires expenditure and action. It is therefore positive. The same assessment may
be made of covenant (c), which in any event definitely does not touch and concern
the land. With (a), are any of the methods by which the burden may have passed
indirectly worth considering here? There are no facts surrounding the restrictive
covenant in (b) to explore intention and registration in detail – but mentioning s.79
and the provisions on notices in the LRA 2002 will allow application of these ideas
to be swift.
Good answers should recognise that as the burden of covenant (b) might have
passed in equity with the sale of Fenners Field, it is important to consider whether
the benefit has also run in equity from T to H. This is not to rule out (for the sake of
completeness) advising H about the application of other common law methods.
However, it makes sense to be discriminating in the emphasis the advice gives to
the other possibilities. Besides, even if the law allows claimants to mix and match
common law and equity methods, why is H going to be more interested in the
prospect of relying on the equitable methods? What equitable remedy is he most
likely to need and want in respect of covenant (b)? Therefore, aside from ruling out
the relevance of schemes of development and pointing to the lack of facts to be
sure if equitable assignment has taken place (although a good answer might

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consider if the court’s approach in Newton Abbot might assist H’ who inherited
Willow from his father). This leaves advice about the requirements for annexation in
equity and, in particular, statutory annexation under s.78 (Crest Nicholson). What
are the preconditions for its application? How do they apply on the facts in the
scenario?
Poor answers to this question…
these contained inadequate and/or inaccurate knowledge of the relevant principles
and made elementary mistakes (including incorrectly identifying which covenants
created positive rather than negative burdens).
Student extract
This question is concerned with freehold covenants. The original parties are
Titmus (T) and Botham (B). The covenantor is B, and T is the covenantee
(with the land that is benefiting from the covenants). Whether the covenants
may be enforced as between the successors in title to the original parties
depends on whether the burden and benefit has successfully passed.
It will be established whether the burden of the covenant has run with the
land, and secondly whether the benefit of the covenant has run with the land
will be considered. Has the burden of the covenant run with Fenners Field? It
is only possible to pass the burden of a covenant at equity, it is not possible
to pass the burden of a covenant at all at common law or at equity.
Therefore, this will need to be considered if Hendry (H) is to enforce the
covenants against Rachel (R).
Firstly, it is only possible to pass the burden of a restrictive covenant at equity
(Tulk v Moxhay). It is not possible to pass the burden of a positive covenant
at all at law or at equity (Austerberry v Oldham Corporation). This means that
the covenant must be negative in substance (Tulk v Moxhay). For example,
in Norwich City College v McQuillin it was held that a covenant to maintain a
fence was positive. Similarly, in Rhone v Stephens it was held that a
covenant to repair a roof was positive. Here, it is clear that covenant (a) is a
positive covenant as it requires the repair of any structures on the property.
Although it is framed in a negative way, it is positive in substance (Tulk v
Moxhay). However, covenant (b) and covenant (c) may be seen as negative
covenants in substance. In particular, covenant (b) clearly prevents the
playing of cricket matches unless it is within the specified time period.
Similarly, although covenant (c) is framed in a positive way which requires
the presentation of awards by the owner of Willow, it is negative in nature
given that it essentially prevents the presentation of awards by a different
person. This is similar to Tulk, where it was held that a positive obligation to
keep an open space was actually a restrictive covenant in nature. Therefore,
the burden of only covenant (b) and (c) may pass.
Secondly, in order to pass the burden, the covenant in question must ‘touch
and concern’ the land. That is, it must be proprietary in nature only rather
than personal in nature. In order to be proprietary in nature, the conditions
listed in Swift Investments v Combined English Stores must be considered:
‘The Covenant affects the nature, quality, mode of user or value of
theland...The Covenant is not expressed to be personal’. Here, covenant (b)
is clearly proprietary in nature as it restricts the use of Fenners Field, which is
the mode of user. Therefore, this limb is met in respect of this covenant.
However, in respect of covenant (c) it is not possible to say that this covenant
is proprietary in nature. It does not relate to the land; it relates to a ceremony
and does not in any way state that this ceremony is to be hosted on the
requisite land.

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Therefore, covenant (c) is only personal in nature and the burden of this
covenant cannot pass to R as successor in title.
Thirdly, in respect of covenant (b), the covenant must have been imposed to
benefit Willow (Whitgift Homes Ltd v Stocks). Essentially, this means that at
the time the covenant was made, land was actually owned by T, and also by
B. Clearly, this is the case given that they both had land at this time on the
facts. The land is continually identifiable as well (Newton Abbott).
Fourthly, the burden of the covenant must have been intended to run with the
land. This intention is automatically found by statute under section 79(1) Law
of Property Act 1925 (LPA 1925). This is essentially a statutory presumption
that annexes the burden to the land (Tophams Ltd v Earl of Sefton). This
presumption may be excluded, and one does not need to expressly exclude
this section: ‘It can hardly be the intention of the section that a covenant
which, on its natural construction, is manifestly intended to be personal only,
must be construed as running with the land merely because the contrary is
not expressly provided’ (Re Royal Victorian Pavilion). There is no exclusion
of this section on the facts, nor is there anything to suggest that there was an
intention to exclude. Therefore, the intention that the burden of the covenant
is to run will be presumed by operation of section 79(1) LPA 1925.
Finally, registration and protection of the covenant should be considered.
Since both plots are registered the covenant must be protected by Notice
against the burdened title in order to be protected. Otherwise, it will not be
enforceable against a purchaser for value (s.29 Land Registration Act 2002
(LRA 2002)) by H, which R is. Here, it is unclear whether B has registered the
covenant so as to protect it. However, the question states that the covenant
formed part of the conveyance. Therefore it may be arguably assumed that it
was so protected as required.
Consequently, only the burden of covenant (b) has likely passed in equity to
R.
Comments on extract
Overall: This extract gives competent advice on the passing the burden of the
covenants, which is one of the two central issues that determines whether H can
enforce the covenants. The essay as a whole achieved a 2:1 mark.
Relevance: Relevance is a strong feature throughout much of the extract. It opens
by quickly summarising the scope of the advice before establishing a sensible
structure for giving it. There is some explanation of basic terminology and concepts
(such as covenants and the parties) but the text is a little repetitive. (How, if at all,
do you think this might be improved?) That said, the substantive advice about
passing the burden of the three covenants from B to R raises and responds to
relevant issues. The coverage is good. Much of the technique is effective because it
prioritises advice-giving and avoids redundant exposition about what the law says.
Having said that, do you think there are points where the reasoning about how the
law does or does not apply to the facts might be fuller and more explicit? Equally,
the extract relies on quotations. Using too many can disturb the flow and impact of
the advice. Could the student have better incorporated some of the points into the
advice by accurately paraphrasing and then citing the source?
Accuracy of information and use of authorities: The legal information is
accurate. Overall, the text makes some good use of authority to support legal ideas.
There are a number of legitimate ways to use decided cases, other than as
evidence in support of what the law says on a point. For instance, it is good to
incorporate references to details of decided cases as part of the advice. However,

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the extract does not always do this successfully (e.g. Norwich City College, Rhone).
Do you think this is because of the student’s choice of facts and/or is it because it is
not entirely clear how they relate to the advice on the problem’s facts? More
importantly, does the extract identify and apply the legal test for distinguishing
between positive and restrictive covenants?
Clarity and presentation: The extract is clear and appropriately expressed. Using
italic font for the names of parties in a case is preferable.
Question 2
Polly purchases the registered freehold title of Retreat, a country hotel, from
Vern for £1.5million. Retreat includes a hotel with separate living quarters,
extensive grounds and a number of outbuildings. Polly did not visit Retreat
before buying it, only viewing it online.
When Polly arrives at Retreat for the first time, she meets Walter, a
neighbouring farmer, driving his tractor through the hotel grounds to reach
some of his fields. Polly is startled when William tells her that he has the right
to do so.
Later that day, Polly finds Clem in one of the outbuildings, which he is using
as part of his gin-making business. Clem shows Polly a document that gives
him a six-year lease of the outbuilding. The document also contains a
provision allowing him to buy the registered freehold title of the outbuilding at
any time during the currency of his lease.
Polly returns to Retreat where she meets Bianca, Vern’s daughter. Bianca, a
teenager, is unpacking her luggage in one of the bedrooms in the hotel’s
living quarters. Bianca points to all her clothes in the wardrobe and the
personal belongings on the dressing table and tells Polly that she has lived at
Retreat since Vern bought it five years ago. Polly is surprised. She shows
Bianca an email on her mobile phone from Vern replying to her enquiry about
the belongings, which she had seen in online photographs of the room.
Vern’s email says that ‘all those things belong to my daughter who has gone
away’. Bianca is just back after spending a year studying in Paris at Le
Gordon Bleur Academy. Bianca also tells Polly how she had used the
monetary prize from a children’s TV baking competition to help Vern buy
Retreat.
Advise Polly.
How would your advice about Bianca’s rights differ if Polly’s purchase of the
freehold title to Retreat could be governed entirely by the rules of
unregistered land law?
General remarks
P needs advice about the priority of the third-party rights belonging to the others
after she becomes the new owner of Retreat’s registered title. P also needs advice
about the enforceability of B’s claim to a beneficial interest if the sale,
hypothetically, could be governed by the principles of unregistered title. Chapters 2
and 3 of the module guide introduce the relevant principles.
Law cases, reports and other references the examiners would expect you to use
City Permanent Building Society v Miller; Williams & Glyn’s Bank v Boland; Abbey
National BS v Cann; City of London BS v Flegg; Chhokar v Chhokar; Hypo-
Mortgage Services v Robinson; Stockholm Finance Ltd v Garden Holdings Ltd;
Thompson v Foy; Link Lending v Bustard; Chaudury v Yavuz; ss.2 and 27(2) LPA
1925; s. 33(5) of the Family Law Act 1996; ss.27, 29, 33, and 40 of the LRA 2002
and paras 2 and 3 of Sch.3.

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Common errors
Common errors included: superficial treatment of the priority issues and/or giving
undue attention to the nature of the claimants’ rights – even though there were few,
if any facts, upon which to base such legal advice.
A good answer to this question would
identify priority as the overall purpose of the advice. There is little if anything in the
facts to support a full-scale consideration of whether each claimant’s interest (lease;
beneficial interest and easement) exists. This can be taken at face value. Therefore,
as P is a purchaser (for valuable consideration) of V’s registered title in Retreat,
s.29 LRA 2002 offers a sensible jumping-off point for advice on whether or not W, C
and B will continue to be enforce their competing property rights.
The facts are ambiguous about the formality with which W’s easement is created.
Good answers will, therefore, advise on how the variables may alter the outcome in
terms of its priority. If W’s easement is expressly created as a legal easement it
requires registration; as an equitable easement its priority will depend on protection
on the register by a notice; and, if it is an impliedly created legal easement, good
advice will carefully apply the requirements set out in Sch.3, para.3.
The status of C’s lease is quite straightforward. As a ‘grant’ (deed) of six years, it is
protected as an unregistered interest that overrides P’s registered title: Sch.3,
para.1. If C’s lease is equitable, then, absent its protection via the register, in what
circumstances might C be eligible to rely on Sch.3, para.2? Do they exist on these
facts? Similarly, good answers will advise on the way the 2002 Act’s priority rules
apply to his estate contract.
Clearly, B’s financial contribution forms the basis of her claim to a beneficial
interest, one that she might have protected on the register via a restriction. On the
assumption that she did not do that, and as overreaching has not taken place, will
she be able to claim an interest that overrides by virtue of Sch.3, para.2? B is a
teenager who may be a minor. As such, on one judicial view of s.70(1)(g) LRA 1925
(Hypo-Mortgage Services v Robinson, B cannot be in actual occupation. Why? If
that interpretation applies to the 2002 Act, do you think it is correct/justifiable?
Otherwise, B’s absence in Paris, during the period that P completed and registered
her purchase of Retreat – requires B to fulfil the detailed terms set out in Sch.3,
para.2. What are these? How might judicial and scholarly views enrich the advice
on this point? What is the significance of P’s pre-purchase email exchange with V
about B’s belongings to the application of para.2?
Determining the priority of B’s rights according to the rules of unregistered land law
calls for advice on B’s beneficial interest, which will not have been overreached. B’s
chances therefore turn on how notice – most particularly constructive notice –
applies here: Kingsnorth v Tizard.
Poor answers to this question…
totally failed to offer P any advice about priority, or completely misunderstood the
rules that apply to registered title (sometimes by confusing them with those relating
to unregistered land).

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Question 3
‘Legislative changes introduced since the start of the 21st century have
drastically curtailed the prospect of landowners losing out to squatters.
Although this is a welcome shift in legal direction, it remains to be seen how
far it will be an improvement on the previous legal regime governing claims to
adverse possession of land with registered freehold title.’
Discuss.
General remarks
This essay title is about adverse possession. Chapter 11 of the module guide
introduces the topic.
Law cases, reports and other references the examiners would expect you to use
JA Pye (Oxford) Ltd v Graham; Buckinghamshire County Council v Moran; Powell v
McFarlane; IAM v Chowdrey; Zarb v Parry; Best v The Chief Land Registrar; Dowse
v Bradford Metropolitan District Council; JA Pye (Oxford) Ltd v The United Kingdom;
Leigh v Jack; s.144 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012; ss. 15 and 17 LA 1980; ss. 96 and 97 and Schedules 6 and 12, para.18 of the
LRA 2002; Updating the Land Registration Act 2002 (Law Com 380, 2018), Chapter
17 ‘Adverse possession’.
Common errors
Writing a descriptive survey of the topic with little, if any, reference to the ideas and
language used in the quotation was a common error. Failing to address the
question, as set, is a serious and costly mistake – and sometimes a waste of
potentially worthwhile knowledge.
A good answer to this question would…
consider if/how the major changes the LRA 2002 introduced to the process for
giving effect to adverse possession have ‘drastically curtailed’ a squatter’s chance
of gaining title. Good answers may do this in a variety of ways. Will a period of
adverse possession ever be enough to give the squatter title under the 2002 Act?
When will a registered owner lose out and how does that differ from the position
under the LRA 1925? Does the process in Sch.6, para.5 serve as an early warning
to registered owners that gives them opportunities and adequate time to regain
possession of their land? Good answers may choose to explore the value and
judicial interpretations of the provisions for settling boundary disputes even where
the registered owner objects to the squatter’s application for registration. How far do
the other two exceptions in Sch.6, para.5 have anything to do with settling adverse
possession claims? It is worth pointing out that the LRA 2002 does not change the
common law elements of adverse possession. Any discussion of this body of case
law, and the litigation concerning the compatibility of adverse possession with
human rights, will therefore need to be justified by reference to some or other part
of the question. How might you do that?
Good answers will engage with the question’s invitation to discuss whether the shift
is welcome. Whatever stance you take it is important to state your reasons and
support them with evidence. This might involve exploring justification(s) in favour of
adverse possession and discussing whether they continue to apply to registered
land. For instance, is its role in curing defects in unregistered title relevant to the
LRA 2002’s system of title by registration? How important is maximising the
accuracy of the register by ensuring its content reflects the position on the ground?
Similarly, good answers might consider if the curtailment of adverse possession is
an unqualified improvement. What if more squatters stay on the land without
applying to become the registered owner? Would that frustrate a key objective
behind the LRA 2002? The essay title is broad enough to encompass the crime in

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s.144 Legal Aid, Sentencing and Punishment of Offenders Act 2012. Does
commission of the offence affect the squatter’s access to Sch.6 (Best)? Might the
offence lead to an increase in squatting of commercial property?
Poor answers to this question…
these included essays that contained significant errors and/or relied heavily on
accounts of the common law elements of adverse possession.
Question 4
In January 2017 Andi, Bob, and Bob’s mother, Cynthia, bought a house
together for them all to live in. They contributed unequal amounts to the
purchase price of the property and the property was conveyed to Andi and
Bob as legal joint tenants for all three of them as ‘beneficial joint tenants’.
In 2018 Cynthia told Andi about her hairdresser’s gossip that Bob was having
an affair with Damion. When they confronted Bob, he confessed and told
them that he wanted to sell his interest in the house so that he and Damion
could buy a new home together. The three of them discussed the possibility
of Cynthia buying Bob’s interest in the house. After several days of
discussion, Bob and Cynthia settled on a price. The next day Cynthia,
enraged by Bob’s behaviour, changed her mind.
A week later, Andi sent Bob and Cynthia a postcard telling them that as she
‘was making plans to move abroad in the next year’ they should ‘respect her
wish to claim her interest in their house’. There was no room for Andi to add
her signature. She posted the card on her way to work in the morning.
However, and unbeknown to Andi, industrial action by postal workers meant
the postcard was only delivered to the house three days later. In the
meantime, she got a text message at work to say Bob had been rushed into
hospital. When Andi got home that evening, she immediately left a note for
Bob and Cynthia on the hall table telling them to ignore her postcard because
she had changed her mind. Bob died the following day. In his will, Bob left all
his property to Damion.
In 2021 Cynthia was diagnosed with a rare skin condition. She mortgaged her
interest in the house to Elderly Bank to pay for a private therapy room to be
built in the garden. She has recently been unable to keep up her monthly
repayments to the bank.
Andi and Cynthia now want to stay in the house but Elderly Bank want it to be
sold.
Advise Elderly Bank about who is entitled to the proceeds of sale and in what
shares; and whether the property is likely to be sold.
How, if at all, would your advice differ if Cynthia had been declared bankrupt?
General remarks
This question raises issues about severance and disputes between co-owners of
land about sale. Chapter 5 of the module guide introduces these topics.
Law cases, reports and other references the examiners would expect you to use
Goodman v Gallant; Gould v Kemp; Williams v Hensman; Burgess v Rawnsley;
Neilson-Jones v Fedden; Hawkesley v May; Harris v Goddard; Kinch v Bullard: Re
88 Berkeley Road; Fantini v Scrutton; Bank of Ireland v Bell; Mortgage Corporation
v Shaire; First National Bank v Achampong; White v White; Edwards v Lloyd's TSB
Bank plc; Re Citro; Claughton v Charalambous; Everitt v Budhram; Re Raval;
Harrington v Bennett; Nicholls v Lan; Pickard v Constable; ss.36 and 196(3) and (4)
of the LPA 1925; ss.14 and 15 of TLATA 1996; and s.335A IA 1986.

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Common errors
Giving redundant and extensive advice about the legal and beneficial co-ownership
when A, B, and C acquired the house in 2017 was a common error. This issue is
straightforward. In part (a), many students gave overcomplicated or muddled advice
on how T’s statements during the conference call were wrongly seen as the basis of
mutual agreement or mutual course of conduct. Some answers to part (b) made
very little or superficial use of the case law relating to disputed sales under ss.14
and 15 of TLATA.
A good answer to this question would…
open by identifying that the legal and beneficial co-ownership in 2017 as
economically as possible. A and B are trustees (under a trust of land), and the three
of them expressly own the beneficial estate as joint tenants. Given the prevailing
state of authority, it seems difficult to see how B’s 2018 unilateral oral declaration
that he wants to sell falls within any of the common law categories of severance
identified in Williams v Hensman. Even if B and C’s post-confession conversation
about sale is sufficient to imply an informal agreement to sever (Burgess v
Rawnsley) it does not involve all three joint tenants. The original pattern of co-
ownership is therefore unaffected.
The unsigned postcard is definitely a notice in writing. But does its content satisfy
s.36’s requirements for it to be effective in severing (Harris v Goddard)? Even if it
does, that should lead the advice on to consider whether it has been given to the
others and when it takes effect. The facts do not specify, so assuming A uses the
standard postal service the notice is effectively served when it reaches the house
(s.196(3)), which is three days after posting. In which case, can A revoke before
that time and has she done so effectively? Good answers will offer critical advice
about the correctness and scope of Neuberger J’s tentative view on revocation in
Kinch v Bullard. Would the advice differ if A had sent the delayed letter by
registered post (s.196(4))? D’s claim to inherit B’s interest will depend on whether
severance occurred before survivorship. If a joint tenancy still exists, then C’s
mortgage severs within the first of Williams v Hensman’s categories.
The dispute over sale requires argument about the application of all the relevant
factors in s.15 TOLATA 1996 – most obviously, on the facts in the question, the
purpose of the trust and the interests of the Elderly Bank as secured creditors.
These are the main factors the court is likely to weigh when considering whether to
order sale and what that order might be. Good answers will find nuanced ways to
use the case law to consider how the court may weigh contrary statutory factors.
Here, and in the absence of the welfare of children, the Elderly Bank, as secured
creditors, will have a powerful voice: Shaire and Bell. The alternative rubric calls for
the advice to shift focus to the different framework provided by the Insolvency Act
1986 – where the central problem is that the bankrupt wants to stay in the house.
Good answers will deal with the statute’s different approach where the trustee in
bankruptcy applies before and after a year has passed since the bankruptcy and
C’s prospects of showing exceptional circumstances. How might the case law help
shape the advice on this issue?
Poor answers to this question…
concluded that, in 2017, A, B and C created a tenancy in common of the beneficial
estate, even though that removed the credible baseline for giving advice about the
possibility that severance had occurred in the subsequent years. Some answers
failed to take the events in chronological order; others lacked an adequate and
secure understanding of how the principles in Williams v Hensman apply.

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 Examiners’ reports 2022

Question 5
‘Too much of the current law about what rights can and cannot exist as
easements is confused and controversial. Similar charges can be levelled at
the grounds by which easements can be impliedly reserved and granted.’
Discuss.
General remarks
Chapter 8 of the module guide deals with the characteristics and implied creation of
easements.
Law cases, reports and other references the examiners would expect you to use
Re Ellenborough Park; Regency Villas v Diamond Resorts; Batchelor v Marlow;
Moncrieff v Jamieson; Hill v Tupper; Moody v Steggles; Phipps v Pears; Nickerson
v Barraclough; Wong v Beaumont; Stafford v Lee; Wheeldon v Burrows; Ward v
Kirkland; Wood v Waddington; s.62 LPA 1925; Law Commission Making land work:
easements, covenants and profits à prendre (Law Com No 327, 2011).
Common errors
Common errors involved either writing in general terms about easements with little
or no reference to the quotation or resorting to a pre-prepared answer to a different
question.
A good answer to this question would…
show an understanding of the law by engaging with the precise terms of the
question throughout. It is important to relate everything the answer says about the
Ellenborough/Regency Villas guidelines and implied creation to key ideas
expressed in the quotation – confusion and controversy. The discussion could
adopt a consistent stance on these assessments or argue in both directions. What
matters most is that you support everything you say with relevant legal evidence.
There are any number of possibilities here. Should the law allow easements in
gross? How far is the distinction between accommodating the dominant tenement
rather than conferring a personal benefit confused? What, if any, limits are there,
and should there be, on recognising recreational rights, particularly after the
Supreme Court’s decision in Regency Villas? How controversial is this potential
expansion in the scope of easements? Good answers will find plenty to say about
the state of the law on car parking easements and ouster. You can enrich your
discussion on these and other points of controversy by drawing upon the wealth of
academic writing on the topic. The discussion must also explore the scope and
operation of impliedly created easements. Once again, there are any number of
viable and relevant arguments about necessity, common intention, Wheeldon and
s.62 for good answers to explore. For instance, has the reach of s.62 expanded
(Wood v Waddington) in a way that downgrades the practical significance of
Wheeldon? Does this create clarity? Does it cut across the Law Commission’s
dormant proposals? Good answers will also do well to find ways of critically
assessing the other methods by which an implied grant or reservation of an
easement might occur.
Poor answers to this question…
failed to discuss both characteristics and implied creation; contained major
inaccuracies; included extraneous material about such matters as express creation
of easements and the different formalities to create them as legal and equitable.
Student extract
This essay is going to assess the Law Commission's suggestions to reform
the implication of easements, and the distinction between grants and
reservations.

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 Simply put, an easement allows one landowner to use the land of another; it
can either be positive - such as a right to use a path over their land - or
negative (such as a right to light); the requirements of an easement were
famously laid out in Re Ellenborough Park 1956.
Not only can easements arise in three ways (as an express grant; an implied
grant; or per prescription), but an implied easement can be created in four
different ways:
1. by necessity
2. via Wheeldon v Burrows (quasi-easements). A new easement will be
created where two plots of land were owned by A, and tehre was a
‘continuous and apparent’ quasi-easement in one plot's favour over
another, A confers an interest on B, and it is ‘necessary for the
reasonable enjoyment’ of B's interest that it should come with the
easement (Gardner, 2016).
3. easements necessary for common purpose
4. easements arising under s. 62 (converts consensual privileges into
easements subject to contrary intention).
Further, easements can either be granted (e.g. walk over my lawn when I sell
the neighboring plot of land to you) or reserved (I reserve the right to walk
over your lawn when I sell the neighboring plot of land to you).
Indeed, in ‘Making land work’, the Law Commission argues that the existence
of different tests makes the law governing the implication of easements
unnecessarily complex as there is ‘no obvious need for so many distinct
methods of implication’. This, rightly, creates uncertainty. Further, it has
recognized that the distinction between implied grants and reservations may
produce arbitrary and unfair outcomes because for a successor in title, it may
be essentially a matter of chance if it turns out an easement is an implied
grant, or an implied reservation.
However, it is more difficult to establish an implied reservation. Therefore the
Law Commission's suggestion is to introduce a new statutory test to imply an
easement: would it be necessary for the reasonable use of land? This
solution would increase certainty by replacing the multiple tests at common
law, as well as reduce the distinction between reservation and grants.
Comments on extract
Overall: This is the opening part of an essay. Overall, it secured a third-class mark.
Relevance: A lack of relevance is the extract’s most serious shortcoming. This is
obvious from the opening sentence. It ignores the question, identifying a different
and narrower remit for the discussion. It signals that the answer is going to confine
is attention to implied creation, disregarding that part of the question that asks about
the law’s approach to determining which rights can be easements. All this is poor
technique. Much of the extract contains unrelated and descriptive material. It places
unjustified emphasis on the Law Commission’s Report (which is, admittedly, a
useful secondary source). This is not to deny that some of the extract has potential
relevance as a worthwhile answer. How might you better direct some of the content
to build relevant arguments that address the question?
Accuracy of information and use of authorities: There are no glaring
inaccuracies. However, much of the narrative is in the form of superficial notes.
There is plenty of scope to use a wider range of sources, including case law.

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 Examiners’ reports 2022

Clarity and presentation: On the whole, the extract is clear and easy to follow.
However, the text is disjointed. A tighter structure would definitely improve its flow.
Some of the references (‘Making it work’; and ‘Gardner (2016)’) are incomplete.
Otherwise, there are no major concerns with either the presentation or the citation
and referencing practice (as far as it goes). It is preferable to use italic font for the
names of decided cases.
Question 6
When Sandro retired, he used a lump sum from his pension to buy a small
cottage in a seaside town in Wales, where he had always wanted to live.
Having decided to keep his properties in London, Sandro made the following
arrangements:
(a) Sandro allowed his nephew, Jules, and Jules’ best friend, Karen, to
live in his two-bedroomed house in Bow. Sandro was relieved that
he was going to have people he trusted taking care of his house.
Before moving in, Jules and Karen each signed identical documents
with Sandro. Each document was headed, ‘Residency Agreement’.
Its terms included the following clauses:
(i) the resident has the right to live in the house on a monthly basis;
(ii) Sandro will retain a key;
(iii) Sandro reserves the right to sleep on the sofa bed in the study
whenever he is visiting London to visit the theatre or check on
the house; and
(iv) the resident is liable to pay £200 per month to live in the house.
A week after moving to Wales, Sandro emailed Jules. He told him that as he
was enjoying living by the sea so much he would not be making weekend
trips to London for the foreseeable future.
(b) Sandro entered into a deed with Horticulture plc, giving it exclusive
use of the plot of land that Sandro held on licence from the London
Borough Council. Sandro had used the plot to grow his own
produce. The deed provided that Horticulture plc could stay on the
plot for ‘three years or until such time as I decide to return to live in
London’.
(c) Sandro agreed that Colin could have a two-year legal lease of
Sandro’s lock-up garage in the East London Arches for him to use
for his car repairing business. They agreed that Sandro could
terminate the lease by giving Colin six months’ notice. Sandro and
Colin settled on the amount of rent for the garage by following the
advice of a local estate agent who regularly takes his car to Colin
for maintenance and repair. Sandro did not finalise the grant of
Colin’s lease before he left for Wales, and he later forgot all about it.
Colin was not bothered because he had already moved into the
garage and was paying rent each month into Sandro’s bank
account.
Advise Sandro about the legal effect of the arrangements he has made with
Jules, Karen, Horticulture plc and Colin.
General remarks
This is a standard problem on the essential characteristics of leases (exclusive
possession and certainty of term) together with the formalities for their creation.
Chapter 6 of the module guide outlines the relevant legal material.

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Law cases, reports and other references the examiners would expect you to use
Street v Mountford; Somma v Hazlehurst; Bruton v London and Quadrant Housing
Trust; Antonaides v Villiers; AG Securities v Vaughan; Somma v Hazlehurst; Aslan
v Murphy; Mikeover v Brady; Stribling v Wickham; Huwyler v Ruddy; Lace v
Chantler; Ashburn Anstalt v Arnold; Prudential Assurance Co Ltd v London
Residuary Body; Berrisford v Mexfield Housing Co-operative Ltd; Southward
Housing Co-Operative Ltd v Walker; Jones v Padavatton; Nunn v Dalrymple; Walsh
v Lonsdale; Fitzkriston LLP v Panayi; s.49(6) LPA 1925; ss. 1 and 2 LP(MP)A 1989;
ss.54(2) and 149(6) LPA 1925.
Common errors
There were a number of common errors. They included paying insufficiently close
attention to: the facts in (a) relating to J and K’s claim to enjoy exclusive
possession; plausible alternative constructions of the deed’s language about the
maximum duration of H plc’s term; and how Walsh v Lonsdale might apply to the
facts in part (c).
A good answer to this question would…
analyse (in part (a)) J & K’s claim to exclusive possession. The advice should work
with Lord Templeman’s approach in Street and related case law. As there are two
occupiers, J & K, they must establish that they have exclusive possession as joint
tenants. A good answer might include legal advice on the specific clauses and
circumstances of the residency agreement. What is the significance of the family
connection with J and the confidence he places in them? How relevant are: the
document’s heading and other terminology it uses about is legal character; the
purpose and effect of S retaining a key to the house; and S retaining the right to
stay on the sofa bed? Good answers will use case law to enrich and support the
advice. There is credit for advice that engages in a critical way with the law and the
facts. What is the impact of S’s subsequent email about clause (iii)? Does it provide
any basis to suggest the clause is or is not a sham/pretence? As to the existence of
a joint tenancy, the advice needs to examine the effect of clause (iv) on the
existence of unity of interest.
With part (b), does the wording in the deed definitely indicate that at the outset the
duration of H plc’s maximum term is uncertain? If it construed as uncertain, and
assuming rent is paid (on which the facts are silent), does the approach in Mexfield
apply to H plc? Additionally, do the facts suggest that there was an intention to
create a lease for life that attracts the application of s.149(6) of the LPA 1925? Is it
settled that intention matters? If the deed does not contain an uncertain term, what
is the parties’ legal relationship? Finally, does the fact that S only has a licence to
use the plot prevent him from creating a lease in favour of H plc: Bruton?
The factual silence in part (c) about the form of S’s agreement allows advice in the
alternative. If the agreement is in writing, it generates an equitable lease by virtue of
Walsh v Lonsdale. If it is oral, then by moving in and paying, might C have an
implied periodic tenancy: s.54(2) LPA 1925? Have they agreed the best rent
possible? Good answers will exploit the facts about how the rent was determined
and the possible difference in the period of notice needed to terminate the parties’
agreement depending on whether it is written or oral.
Poor answers to this question…
were lacking in accurate legal content, failed to address all the parts of the question,
or contained very limited engagement with the issues presented in the scenario.

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 Examiners’ reports 2022

Question 7
‘Even if the legal controls on the mortgagee taking possession clearly favour
the mortgagor, the mortgagee’s remedy of sale very much operates to its
advantage.’
Discuss.
General remarks
This question concerns two principal legal ways open to mortgagees (possession
and sale) to protect their security interest. Chapter 10 introduces the relevant legal
principles.
Law cases, reports and other references the examiners would expect you to use
White v City of London Brewery; Birmingham Citizens Permanent Building Society v
Caunt; Quennell v Maltby; Cheltenham & Gloucester BS v Norgan; Bank of
Scotland v Zinda; Palk v Mortgage Service Funding; Cheltenham & Gloucester plc v
Krausz; Polonski v Lloyds Bank Mortgages Ltd; Ropaigealach v Barclays Bank plc;
Horsham Properties Group Ltd v Clark; Kennedy v De Trafford; Standard Chartered
Bank Ltd v Walker; Bishop v Blake; Silven Properties Ltd v Royal Bank of Scotland;
Meretz investments v ACP; Cuckmere Brick Co Ltd v Mutual Finance Ltd; Farrar v
Farrrars Ltd; Tse Kwong Lam v Wong Chat Sen; s.36 of the Administration of
Justice Act 1970; ss. 91(2), 101, 103 and 105 LPA 1925.
Common errors
Ignoring the specific terms of the question by producing a purely descriptive survey
of the mortgagee’s right to possession and its remedy of sale was a common error.
Some essays strayed from these two aspects of mortgages and included irrelevant
legal material.
A good answer to this question would…
engage throughout with the contentions about the bias in the legal controls on
possession and sale. You can do this in different ways. What matters is that the
entire discussion works to subject the substantive material to critical scrutiny from
the perspective of the question.
Good answers will give prominence to a detailed consideration of the mortgagor’s
protection under s.36 of the AJA 1970 and the associated case law. How do the
courts approach the statutory discretion? Has Norgan effected a shift in the way the
legislative discretion operates, one that favours mortgagors? Or are there
arguments for and against the claim in this part of the quotation? Here, there is
scope to recognise that s.36 is: (a) confined to claims to possession where the land
consists of or includes a dwelling house, as defined; (b) dependent on the existence
of court proceedings – allowing for discussion of Ropaigealach; Horsham v Clarke.
On sale, answers may choose to discuss how far mortgagees can (too?) easily
satisfy the LPA’s procedural hurdles for their statutory powers to become
exercisable in the context of mortgages to fund the purchase of a house. Moreover,
the discussion might explore how far the statement is (or is not) correct when it
comes to the considerable body of case law on the mortgagee’s exercise of its
power of sale. Does the law give them too much latitude over when and how sale
occurs – control resting on good faith, save in respect of mortgagees having to take
reasonable care to achieve the market price? Is the mortgagee ever a trustee that
has to put the mortgagor’s interests first (s.105)? Good answers may also consider
judicial sales under s.91(2) LPA 1925. What does the court’s approach to exercising
its discretion tell us about the balance the law shows to the parties’ contrary
interests and needs (Palk; Polonski; Krauz)?
Poor answers to this question…
contained very little relevant and/or accurate material.

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Question 8
In 2008 Brian, a psychologist, started a relationship with Clare, who was
studying at college to become a social worker. A year later, they decided to
live together. Brian found a house for them to live in. As Clare was still
training, they decided that Brian would become sole registered proprietor of
the house. He also paid the deposit and granted the Community Bank a
mortgage over the house.
When Clare qualified as a social worker in 2010, she immediately found a job
with her local council’s social services department specialising in caring for
children’s welfare. The couple then opened a joint bank account into which
they each paid their monthly earnings, and from which they paid the monthly
mortgage payments to the Community Bank and all the other household and
living expenses.
In May 2014 Clare gave birth to Thomas. At Brian’s suggestion, she turned
down the offer of promotion at work before resigning from her job at the
council to take care of the family. They immediately closed their joint bank
account, after which Brian met the monthly mortgage payments and other
household bills from his own bank account.
In 2015 Brian and Clare had a second child, Megan. By this time, Brian began
to work long hours, achieved greater financial security and gained celebrity
status as the resident psychologist on the TV programme Dating Stars. His
contract regularly took him abroad for filming. As a result, Clare spent more
time looking after Thomas and Megan, and carrying out minor repairs, and
decorating the house.
In 2017 Brian used an advance he received from a book publishing deal to
discharge the mortgage with the Community Bank. Later that year, Clare
inherited £20,000 from her aunt. She used the money to build a playroom in
the garden for the children, which she designed and fitted out herself.
Last week, Brian told Clare that he was leaving her and the children to set up
home with Nahlia, the director of Dating Stars. He therefore wants them to sell
the house.
Advise Clare about what, if any, interest she may be able to claim in the
house by way of trust law principles.
General remarks
This question calls for advice on the application of the common intention
constructive trust. Chapter 5 of the module guide introduces this topic.
Law cases, reports and other references the examiners would expect you to use
Gissing v Gissing; Lloyds Bank plc v Rosset; Stack v Dowden; Jones v Kernott;
Abbott v Abbott; Oxley v Hiscox; Marr v Collie: Geary v Rankine; Grant v Edwards;
Le Foe v Le Foe; Midland Bank plc v Cooke; Fowler v Barron; Graham-York v York;
Aspden v Elvy; s.53(1)(b) LPA 1925.
Common errors
Common errors included: failing to find a reliable and systematic structure for the
advice; giving pointless narrative detail about the case law; and taking insufficient
care in reasoning how legal principles apply to the facts/issues in the scenario.
A good answer to this question would…
recognise that as the house is in B’s sole legal name, C will need to show that she
has acquired an equitable interest by an express, resulting or common intention
constructive trust (the rubric of the question excludes advice on proprietary
estoppel). The lack of an express declaration of trust, and this being a family home,

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 Examiners’ reports 2022

the current judicial preference (Stack v Dowden; Jones v Kernott) is to avoid the
use of a resulting trust (but, in any event, C did not contribute to the purchase price
or the mortgage at that time). Good answers will therefore give most attention to C’s
prospects in making a successful claim to having an equitable interest under a
common intention constructive trust. This may adopt a structure that considers, in
turn, what C has to do to succeed in claiming a beneficial interest and how its size
will be determined.
B is the sole registered owner of the property. Is there anything in the facts to
support the existence of an informal agreement/understanding that C was to have
an interest in the property house when they acquired it in 2008? C’s care for the
home and the family are irrelevant to her claim. Otherwise, can C point to any direct
financial contributions (Lord Bridge in Rosset) at the time of acquisition of the
property? Will her later contributions towards meeting the mortgage repayments (in
2010) make a difference to her chances of success on this point? Here, does it
matter if B can show he did not need that assistance? C’s other contributions will
show detrimental reliance as well as possibly increasing the size of her share. If C
is unsuccessful in satisfying a common intention under the first and second
methods in Rosset, it may be possible to argue that the court should take into
account the whole course of dealing from which to infer a common intention (Stack
v Dowden, Abbott, and Kernott). In which case, all of C’s indirect contributions may
have weight in the first stage of determining her claim of acquiring an equitable
interest. However, there must be a genuine intention on behalf of both parties that
the legal title does not represent their equitable interests (Geary v Rankine).
On the basis that C succeeds in claiming an equitable interest, the advice should
move on to quantification – here a flexible and holistic approach applies, one that
takes into account the whole course of dealings with the property and the
relationship that existed between B and C (Kernott and Stack). This is where the
court will look at C’s evidence about her indirect contributions to determine a share
that reflects the true nature of the parties’ common intention. Here, and with the
other matters, good answers will draw on judicial and scholarly views to add depth
to the advice.
Poor answers to this question…
exhibited one or more of the following features: a weak grasp of the law; limited and
inaccurate application of the trusts principles to the facts; and coverage of
proprietary estoppel (which the rubric excludes).

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