Contributory Occupiers

Question 1
Resulting trust
when someone other than the legal owner
makes a direct contribution to the purchase
price

Constructive trust
where it can be shown that there is evidence of
an express agreement or a common intention
that the non-legal owner should hold a share in
the property where there have been other
financial contributions
e.g. mortgage payments or building work.

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Question 3
Restriction

• prevents sale by sole trustee

• buyer must pay purchase money to two
trustees in order to take free from the
interests of beneficiaries
• beneficiaries interests will be overreached
into proceeds of sale
• beneficiary must pursue trustees for their
share of sale proceeds

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Question 5

Occupation

Chhokar v Chhokar 1984

Hoggett v Hoggett 1979
Link Lending Ltd v Bustard 2010
Strand Securities v Caswell and Stockholm
Finance Ltd v Garden Holdings Inc. 1965

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Mortgages

Question 4

5 remedies:

• Suing on the personal covenant to repay

• Foreclosure
• Sale
• Possession
• Appointment of a receiver

Sale is the most common

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Question 5(a)

S101 LPA

When POS Arises:

• Mortgage must be by deed

• POS not restricted in Mortgage Deed
• Monies are due (i.e. Legal date for
redemption has passed

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Legal date for redemption

• This is a specific legal right to redeem (pay off)

the mortgage on the actual date specified

• Originally the whole loan must be repaid on

this date or the lender could foreclose (seize
the property) – nowadays there is no
noticeable change in situation on the legal date
for redemption

• This was very harsh because if the payment

was only 1 day late the lender could foreclose

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S103 LPA

When POS becomes exercisable:

• Breach of mortgage term

• Notice has been given by the lender

requiring payment of the mortgage money
and there has been 3 months default after
service of the notice

Note that this was far more relevant when

payment was made on demand, instead of
in monthly regular instalments

• Arrears of 2 months

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Question 9

Order of distribution

S. 105 Law of Property Act 1925

i prior mortgages
ii costs of sale
iii paying off this mortgage
iv paying off any subsequent mortgages
v if anything left - will go to the mortgagor

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Question 10

Two duties
(a) to act in good faith (subjective) and
(b) to take reasonable care to obtain the
true market value (objective)

These are owed to:

• other mortgagees
• guarantors
• the mortgagor

They are not owed to a beneficiary under a trust

of which the mortgagor is trustee

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Revision Lecture 2
Mortgages Problem Question 2
Order of distribution of sale proceeds (applying
s105 LPA)

▪ Prior mortgages
– None on the facts as TBL is 1st mortgagee
▪ Costs of sale - Dennis (Estate Agent)
▪ Paying off this mortgage -TBL
▪ Paying off any subsequent mortgages
– Should be Larry, but he hasn’t registered
his mortgage
– Do TBL know it was ever actually taken
out?
– So Larry probably not in this category
▪ If anything left – mortgagor
– Jerry
– Note that Larry can sue Jerry for what he
is owed under Jerry’s personal covenant
to repay (if he can find Jerry!)
▪ Therefore answer is Dennis/TBL/Jerry/Larry

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 Adverse Possession

1.
Three “ingredients” for adverse possession:

• Factual possession

• Animus possidendi

• Possession must be adverse

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2.

Powell v McFarlane (1979) 38 P&CR 452

Slade J:

“Factual possession signifies an appropriate

degree of physical control… Everything must
depend on the particular circumstances, but
broadly, I think what must be shown as
constituting factual possession is that the
alleged possessor has been dealing with the land
in question as an occupying owner might have
been expected to deal with it and that no one
else has done so.”

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 Easements

Re Ellenborough Park 1956

• There must be a dominant and a servient

tenement
• The dominant and servient owners /
occupiers must be different persons
• The easement must accommodate the
dominant tenement
• The easement must be capable of forming
the subject matter of a grant
This last requirement can be further broken
down as follows:
• There must be a capable grantor and
grantee
• Must be sufficiently certain to be
capable of description
• The right must be within the general
nature of rights capable of existing as
easements.

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3.

Right of drainage - Attwood v Bovis Homes Ltd

Right to light -
Colls v Home & Colonial Stores Ltd 1904
• particular windows or apertures

Right to a view –
William Aldred’s Case 1610, Phipps v Pears 1965
• too vague to be capable of definition

Right to support - Dalton v Angus 1881

• limited in scope - will prevent a neighbour
from removing a wall but will not force them
to repair it

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Right of storage -
Compare Wright v Macadam 1949 with
Copeland v Greenhalf 1952.
Batchelor v Marlow 2003
• must not be too extensive a right to deprive
the servient owner of possession.

Right to park - London & Blenheim Ltd v

Ladbroke Parks Ltd 1992
Moncrieff v Jamieson 2007– overall control is
key
Poste Hotels Ltd v Cousins [2020] EWHC 582 (Ch)

Right to wander over land - Dyce v Hay 1852

Herts CC v Levy 2002
• Probably too vague

Right to use land as a garden –

Re Ellenborough Park 1956
Mulvaney v Gough 2002
Regency Villas Title Ltd. and others v Diamond
Resorts Europe) Ltd. and others [2018]
• sufficiently certain
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4.
Green v Ashco Horticulturalists Ltd (1966)
an “intermittent consensual use” subject to
the “exigencies of the alleged servient
tenant” is not the type of use capable of
forming the subject matter of a grant.

International Tea Stores v Hobbs (1903) the

use of a roadway at certain times and for
certain purposes was capable of existing as
an easement.

Issue of certainty.
It must not be too vague.
It must not be dependent on the say-so of
the servient owner.

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 5.
Possible ways in which easements can be
created

• Necessity
• Intention
• Wheeldon v Burrows
• S 62 LPA 1925
• Prescription under the Prescription Act
• Prescription by Lost Modern Grant
• Common law prescription
• Express grant

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6.
S 62 Law of Property Act 1925
Conveyance of land carries with it all rights
which are capable of being easements
• A Conveyance (transfer / lease)
• (Prior diversity of occupation ? – Wood v
Waddington* says not necessary)
• A right which is capable of being an easement
• No contrary intention
• Right must appertain to the land
• If no prior diversity of ownership then must be
continuous and apparent
*Wood & Anor v Waddington [2015] EWCA Civ 538

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Wheeldon v Burrows

When land is sold, there is an implied grant of

those rights which are continuous and
apparent and necessary to the reasonable
enjoyment of the property

• Sale – will always be of part of grantor’s

land
• A right which is capable of being an
easement
• That right is continuous and apparent, and
necessary to the reasonable enjoyment of
the property
• The right was used by the grantor for the
benefit of the part granted at the time of
the grant (quasi easements)

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Prescription under the Prescription Act 1832

Use for 20 years (shorter period) or 40 years

(longer period) without interruption cannot be
defeated

• Use must be ‘as of right’:

“nec vi, nec clam, nec precario”
(without force, secrecy, permission)
• only written permission will defeat rights to
light and longer period claims
• Claim must be next before action
• Interruptions for one year or more will stop
time running.

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Easements problem Question 3 - Prescription
“Interruption”

Khaled(DT) has had a right of light and used the

path since September 2003.
In April 2023 Rosa put up a barrier fence
restricting his light and she blocked the
pathway preventing K’s use of it.

Sept 2003--------…--------------------April 2023 -------------------------------April 2024

19 yrs 8 mths interruption valid interruption
must be 12 mths

Sept 2003- -----…------------------------------------------Sept 2023------------April 2024

20 yrs window of
opportunity for K to claim

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