Examiners’ reports 2023

Examiners’ reports 2023

LA2003 Property law – Zone B

Introduction
The format of this year’s assessment is on a par with that set in recent years. There
were creditable submissions showing a strong grasp of the law and an ability to use
the questions to reveal understanding of the law and some insight. Equally, there
were many submissions that fell back on regurgitation, often paying scant, if any,
attention to the question. This approach severely limits the credit you can be given.
Over the years, Examiners’ reports have regularly underlined the link between
doing well in the examination and paying close attention to the precise terms of the
essay title or the issues raised by the facts of scenario questions. All too often,
examiners see pre-prepared answers to a different question form that which has
been set. These set pieces can become familiar. Leaving aside the prospect that
similarity may trigger concerns about academic misconduct, cutting and pasting is
unlikely to impress or receive much credit. The key to success is to answer the
question. Here are some other tips for creating good answers that bear repetition.
1. Make sure you read and follow the instructions on the front of the question
paper carefully. This applies to how many answers you are required to
answer and, where applicable, to the need to answer both parts of a
question.
2. Answer the required number of questions. Each question carries an equal
proportion of the marks. Answering only three instead of four questions
usually has a significant effect on your overall mark – in the worst-case
scenario, it may make the difference between passing and failing. Make
sure you manage the time carefully. Resort to note form answers only as a
last resort and only for the final question. Make the notes as telling as
possible by including an indication of how the legal ideas apply to the facts
of the question.
3. Read the question paper several times before you start. Take care when
deciding which questions to answer. Make sure you have correctly
diagnosed the topic(s) to which they relate. When you have made your final
selection re-read them.
4. Considered and structured answers are a sign of a good submission. Make
a careful plan of the structure and content of your answer before you start
to type. In the planning stage, identify a wide range of issues and settle on
a systematic way of moving from one issue to the next. A planned approach
has several benefits over answers that are a stream of consciousness. The
plan is also a reference point for you as you write – a reminder of what you
have covered and what you have left deal with.
5. Signpost your answers. You do not need to use headings to do this.
Intelligent use of paragraphs can help. Think in terms of using a paragraph

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 for each issue you cover. Introduce the issue at the outset and round off the
advice on the issue at the end. By doing this before identifying a further
point that neatly follows on, you may save yourself from having to start your
answer with a lengthy introduction and finish it with a conclusion that simply
repeats what you have said.
6. There is nothing inherently bad about introductions and conclusions;
indeed, they can serve an extremely valuable function, especially when
answering essay questions. They are a way of identifying the agenda and
the argument(s) you will be making in you answer. However, when time is
at a premium and you are seeking to make your answer as comprehensive
as possible use them efficiently.
7. Make sure that you state the law accurately and appropriately support what
you say with ‘authority’. Make sure your citation of cases and statutes is
accurate. Name statutes correctly. There are no marks for copying out
chunks of statutory (or other) materials – including extracts from the module
guide.
8. It is crucial to make the application of law to the facts explicit. Application
needs more than an asserted conclusion. You need to reason your points
fully and draw on the appropriate legal sources – principally, primary
sources – to support what you say. This is important because, even if
examiners disagree with your thinking, they may still give you credit for the
material and your attempt to use it to address the question.
9. Some problem questions include points where the application may be far
from clear-cut. This may be because facts are untested, or the state of the
law is either contested or unsatisfactory. Here, it may help to draw on
different judicial and academic opinions and include your own reasoned
views as part of your advice. This may also allow you to enrich your answer
by using secondary sources such as journal articles. However, it is
counterproductive to simply bolt on a scholar’s views as an add-on at the
end of your advice on a related question; adding: ‘Dixon agrees’. Say why
Dixon agrees and, even better, why you think that Dixon is right or wrong.
Find ways of integrating such thinking within the body of your advice on the
specific issues and facts in the question, so that you do not drift away from
giving advice.
10. Take care with your grammar and spelling – language is the lawyer’s tool
and you need to be able to convey the meaning of what you have to say
clearly and unambiguously. Remember that it is your responsibility to
ensure that your submission is coherent. Examiners understand that you
are typing under the pressure of time. They may therefore cut you some
slack for typographical errors. However, they need to be able to follow what
you are saying. So, whenever possible check back over your work before
submitting it. Presentation also matters. It suggests that you care about
your work.
The feedback in the next section (‘Comments on specific questions’) relates
specifically to each of the eight questions. It deliberately does not aim to be
prescriptive or comprehensive. It most definitely does not provide model answers to
the questions. The comments merely highlight commonly encountered errors and
give pointers of things that examiners think make either a good or a poor answer. In
addition, the comments seek to illuminate some of the technical qualities involved in
responding to questions – most particularly problem-style questions. Two of the
questions will contain an extract from an answer and commentary. It may include
questions that invite you to reflect on technical qualities that examiners’ value.

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 Examiners’ reports 2023

Please note:
(a) references to the module guide are to the Property law module guide
2022/23;
(b) any errors that were present in the student extracts in the following section
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
Luis, a self-employed builder, purchased The Villa, a substantial Victorian
house and garden. As the house required major works of renovation, Luis
was able to acquire it for £420,000 at auction. At the time, Luis was
temporarily short of funds because of a delay in receiving payment for a hotel
refurbishment project he had recently completed. Luis rushed to the local
branch of The Levellers Bank, which was located next door to The Villa. Luis
persuaded Donald, the branch manager, to authorise a loan of £400,000. The
loan was secured by way of registered charge against the registered title of
The Villa. The Levellers Bank included the following clauses in the loan
agreement:
(a) the mortgagor cannot redeem the mortgage for 15 years;
(b) the mortgagor must use the empty garage at the rear of the
mortgagee’s branch of The Levellers Bank located next door to The
Villa to store the building materials to be used throughout the
renovation of The Villa; and the mortgagor shall pay the mortgagee a
nominal sum for use of the garage;
(c) the mortgagee has the right within seven years of the date of this loan
agreement to purchase one quarter of the garden at the rear of The
Villa at market value.
Luis moved his family into The Villa, and started to renovate it in his spare
time. After injuring his back on a building site, Luis was unable to work. He
missed four monthly mortgage repayments. Donald wrote to him on behalf of
The Levellers Bank demanding payment of the outstanding sums due under
the mortgage agreement and immediate possession of The Villa. Donald
explained that The Levellers Bank wanted to sell The Villa as quickly as
possible. Luis, having fully recovered from back surgery, will return to work
next month. Last week, Karen, Luis’s partner, returned to her part-time job as
a dental hygienist after being on maternity leave.
Advise Luis: (i) whether any of the mortgage terms are binding; and (ii) what,
if anything, he can do to keep possession of The Villa and prevent The
Levellers Bank from selling it.
General remarks
This problem question calls for advice about: (a) the protection of Luis’s (L) equity of
redemption; and (b) how he may be able to retain possession of The Villa.
Chapter 9 provides introductory material about the salient legal principles.

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Law cases, reports and other references the examiners would expect you to use
Birmingham Citizens Permanent Building Society v Caunt; Quennell v Maltby;
Cheltenham & Gloucester Building Society 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; Kennedy v De
Trafford; Cuckmere Brick Co Ltd v Mutual Finance Ltd; s.36 Administration of
Justice Act 1970; ss. 91(2), 101, 103 & 105 LPA 1925.
Common errors
• Disregarding the specific structure suggested by the question’s rubric.
• Giving insufficient attention to the issues raised by the facts in part (ii).
A good answer to this question would…
(in part (i)) consider what equitable and other protections might assist Luis (L) in
contesting the validity of the three clauses in his mortgage agreement with the
Levellers Bank (LB). Are any of them clogs, unfair restrictions or conditions to the
mortgage contract that go beyond protecting its security, making the transaction
other than a mortgage? In dealing with the validity of the terms the advice may
explore the relevance (if any) of L’s need to get a loan in a hurry and, the absence
of explicit information, that the bank exploited the situation to impose terms in a
morally reprehensible manner (Browne-Wilkinson LJ in Multiservice Bookbinding
Ltd v Marden (1979)). When advising L about each of the three clauses, good
answers should go beyond describing the relevant principles and cases by
engaging with the facts and considering pragmatic possibilities. So, for example,
although clause (b) may at first glance appear advantageous to the mortgagee,
might it be more to L’s benefit, given that even if the renovation extends beyond the
term of the mortgage L is obtaining a convenient storage facility and for a nominal
sum?
Good answers would recognise that as The Villa is L’s ‘dwelling-house’, then part
(ii) calls for advice on the operation of s.36 of the AJA 1970 (as amended). This
would entail working through the statutory requirements and the guidance in cases
such as Norgan. Here, credit will be given for how well the facts in the scenario (and
any plausible speculation about silences in them) are mobilised to explore how s.36
may apply to them. What would a reasonable period be? What is the significance of
L being fit to resume work and his wife returning to full-time work after her maternity
leave? What, if any, risk is there to LB’s security interest if it were not to obtain
possession immediately? The advice may also include targeted advice about the
existence and exercise of the power of sale.
Poor answers to this question…
showed insufficient knowledge or understanding of the applicable legal ideas.
Student extract
Luis will want to bring a claim under the law of mortgages in order to have the
possibility of keeping his matrimonial home. Before bringing a claim,
however, it must first be assessed whether the terms of the mortgage are
valid, and secondly, whether the Levellers Bank is able to take possession
and order a sale. Even if they legally can, Luis may nonetheless be entitled to
the available statutory protections, helping his claim.
(i) Validity of the terms of the mortgage
Clause (a) may impede on the mortgagor's ability to redeem the mortgage.
The equity of redemption is a fundamental objective that a mortgagor is able
to reclaim the land free of any of the mortgagee's interests once he has paid
off his debt. However, the law has to strike a balance between the interests of

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the mortgagee and that of the mortgagor. The mortgagor must have the
potential of redeeming the mortgage, whereas the mortgagee must have the
possibility of making a mere profit off of the transaction. If, say Luis had won
the lottery right after acquiring the mortgage, the Bank would have only lost
resources by giving out a mortgage. Although at common law, the typical
right to redeem is set within six months of the date that the mortgage is
granted, equity allows this date to be set much later. In Fairclough v Swan
Brewery Co Ltd [1912] AC 565, the postponement of a date of redemption set
weeks before the termination of a 17-year lease was held to be void.
However, in Knightsbride Estates Trust v Byrne [1939] Ch 441, a 40 year
redemption was held to be valid. These cases are best distinguished on the
basis that the former involved parties with unequal bargaining power,
whereas the latter concerned two commercial parties. Although Luis is a sole
individual, as in Fairclough, this clause seems to be fair. He has a freehold
title to the land, and therefore the right to redemption is not an illusion and is
neither unconscionable. The clause will therefore be enforceable.
Clause (b) is more tricky given that the collateral advantage of paying for the
use of the garage is both of an unknown duration and price. These
advantages are not of themselves a 'clog' or 'fetter' in the equity of
redemption, although they once where believed to be so (Bradley v Carrit
(1903)). As long as it is not a permanent fetter, this clause will most likely be
valid (Noakes v Rice [1902] AC 24). Therefore, the payment for the garage
must end at the date of redemption, after the repayment of debt. Regarding
the unknown price, this may viewed as void if the courts believe it to be
oppressive or unconscionable. However, the general approach by the courts
is a strict one on the basis that individuals are free to contract on whichever
terms they please. A court will only declare such a clause void where there is
a clear disparity in bargaining power between the parties, and that the clause
itself must 'shock the conscience of the court' (Multiservice Booking Ltd v
Marden [1979] Ch 84). In absence of the duration of the clause and the price
for use of the garage, it is not possible to decide on this point.’
(ii) Levellers Bank's proposal over possession and sale
Levellers Bank's power of sale has arisen under s.101 of the Law of Property
Act (LPA) 1925, and exercisable under s.103 of the same Act because Luis
failed to pay the interests remaining for at least two months after it had
become due. Luis may however apply for a judicial sale under s.91 LPA in
order to perform the sale himself. This will especially be helpful in order to
take Luis families' social interests into account. Furthermore, Luis may be
entitled to the statutory protection under s.36 of the Administration of Justice
Act 1970, as amended by s.8 of the Administration of Justice Act 1973 to stay
in possession. This statutory protection is available to mortgages which
include a dwelling-house. In order for this to be applicable, the court must be
satisfied that Luis will be able to pay back any sums due within a reasonable
time. This should not be at issue here, since he will be returned to work
shortly, where has was receiving enough to pay off the mortgage of his injury,
and on top of that, he will also have further potential income from Luis's
partner's return from maternity leave. He will be likely to be granted the
remaining term of the 15 years to repay back the sums due, as was found in
the case in Cheltenham & Gloucester BS v Norgan [1996] 1 WLR 343.
Further, he may also rely on the Pre-action Protocol for Possession Claims
based on Mortgage or Home Purchase Plan Arrears in Respect of
Residential Property which provides even more protection.

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Comments on extract
Overall: This extract contains a substantial part of the answer submitted, although
some of what is said in part (i) has been omitted. It achieved a 2:1.
Relevance: Overall, the answer maintains a creditable degree of relevance
throughout. It is clearly trying to lead the answer by engaging with the specific
issues and relevant legal ideas without needlessly describing concepts and case
law. The answer sets off sensibly by introducing the scope of the advice and
therefore indicating how it will proceed. It is good that this is part of the answer is
brief, freeing up more words for the substantive advice. Even so, do you think the
first paragraph might be expressed more faithfully to link the content to the terms of
the question’s rubric? If so, how?
The way the answer launches immediately to giving advice on the validity of each of
the individual clauses in the mortgage one at a time is good. Here, the text shows a
clear intention to use relevant legal ideas to provide advice on the specific facts.
That said, how relevant and necessary is the reference to a lottery win? It is
invariably better to base arguments on the facts stated in, or suggested by, the
scenario. It is also important to treat the facts as carefully as possible. For instance,
given that the facts specifically mention that L is to pay a ‘nominal’ sum for use of
the garage, might the advice do more than (repeatedly) mention that the price is
unknown? How might the nominal price affect the determination of the validity of the
clause? Also, reflect on how you might have enhanced the relevance of key legal
ideas (such as unconscionability) in considering the validity of the clauses (a) and
(b)?
When the answer moves to deal with possession and sale it touches a good range
of relevant legal points. However, the advice might be improved by adding detail
and depth to the treatment of a number of these. For instance, how might you
improve add more detail and depth in the analysis of s.36?
Accuracy of information and use of authorities: Much of the legal information,
used in the extract is accurate. What is said mentions appropriate cases, although
several of the legal claims might be far better supported by primary authority
(including those concerning s.91(2) LPA 1925 and s.36 AJA 1970). Attempting to
distinguish the two cases cited when dealing with the validity of clause (a) is a
worthwhile approach. However, do you find the reasoning in the extract entirely
convincing?
Clarity and presentation: For the most part, the meaning of what is said in the
extract is clear, as is the structure. This means that the material is well organised so
that the advice flows and the direction of the advice is easy to follow. Even though
the headings help signpost the answer, they are not essential (particularly if the
paragraphs are constructed so that they create a sense of flow through the issues).
When citing a decided case there is no expectation or need to give a reference to a
law report.

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 Examiners’ reports 2023

Question 2
‘The long-awaited Supreme Court ruling in Guest v Guest (2022) offers
welcome clarification on the purpose of relief for a successful claim to
proprietary estoppel. It also settles the correct approach to how relief should
be determined in future cases. However, it leaves some important questions
about the relief and the elements of the claim unanswered.’
Discuss.
General remarks
This question concerns the impact of the Supreme Court’s major and topical judicial
contribution to the operation of the equitable doctrine of proprietary estoppel.
Chapter 6 of the module guide introduces the relevant legal ideas and the case was
considered in a blog on the VLE.
Law cases, reports and other references the examiners would expect you to use:
Guest v Guest; Taylor Fashions v Liverpool Trustees; Gillett v Holt; Jennings v
Rice; Thorner v Major; Cobbe v Yeomans Row; Pascoe v Turner; Whittaker v
Kinnear; Wayling v Jones; Greasley v Cooke; Davies v Davies; s.54(2) LPA 1925;
and ss.1 and 2 LP(MP)A 1989.
Common errors
• Scant consideration of the Supreme Court’s decision.
• Providing a survey of the elements and relief for making a claim of
proprietary estoppel.
• Discussing, without justifying, proprietary estoppel’s inter-relationship
between with formalities and constructive trusts.
A good answer to this question would…
engage with the landmark decision on proprietary estoppel and the terms of the
quotation. Why it is long-awaited? How do you understand what it might mean to
say it is ‘welcome’; and does the Supreme Court’s decision deliver clarification? All
this gives plenty of opportunity for you to show an understanding of the differences
between the majority and minority views on the purpose and approach to
determining relief in future cases. These differences provide one way of considering
if the majority’s emphasis on unconscionability and expectation as a starting point is
welcome. Answers may highlight how Lord Briggs offers a nuanced approach, one
that does not completely exclude considerations of detriment and recognises how
the relief takes expectation as its ‘starting point’. The fact-sensitive determination of
relief may, as was the case in Guest, call for a need to provide for a clean break
and make discounts where the claimant gets an accelerated benefit. Even if the
majority view is preferable to the minority, does it settle the ‘correct’ approach for
the future or leave important questions unanswered? There is scope for good
answers to draw on wider reading and make judicious use of the state of the case
law before the Supreme Court’s decision. Although the question places the accent
on Guest, the final reference to ‘the elements of the claim’ opens the door for
answers taking a broader consideration of the elements of the claim. However,
good answers will take care in how this is done, so that what is said is justified by
reference to the terms of the question.
Poor answers to this question…
contained little, if any, relevant legal information about Guest and proprietary
estoppel.

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Question 3
In 2020 Mary purchased Misselthwaite Manor. Misselthwaite Manor is a
mansion set in extensive grounds. In December 2020 Mary signed an
agreement with her neighbour, Ben. It gave Ben permission to use the shower
room in an outbuilding belonging to Misselthwaite Manor in return for a
monthly fee of £10. Ben’s house only has a bath. He uses the shower room at
Misselthwaite Manor once a day.
In February 2021 Mary married Dickon, who moved into Misselthwaite Manor
to live with Mary and her former nanny, Sowerby. Dickon is a retired actor. He
looked after the house. As Sowerby became increasingly frail, Dickon did
more of the cooking, cleaning and laundry. He also maintained the grounds.
In May 2021 Mary leased the vegetable garden in the grounds of Misselthwaite
Manor to Colin for five years. Their agreement contained a term allowing
Colin a right, exercisable for five years, to purchase the vegetable garden and
the adjacent secret garden for £50,000. Colin became annoyed when Dickon
helped himself to vegetables. He immediately erected a sign at the entrance
to the vegetable garden that said: ‘Keep Out: Colin’s Vegetable Garden.’
In March 2023 Mary left Dickon to go and live with Susan. She sold
Misselthwaite Manor to Archibald. Archibald bought the property without
taking any professional advice. He did not visit the property until after the
sale transaction had been finalised and he became its registered proprietor.
On arriving at Misselthwaite Manor for the first time, Archibald saw Ben
leaving the shower room before being surprised to find Dickon and Sowerby
living in the house. They are both refusing to move out. Sowerby explained
that she had used her entire life’s savings to help Mary buy Misselthwaite
Manor in 2020. Shocked by his discoveries, Archibald wandered into the
grounds to find Colin planting potatoes in the vegetable garden. He asked him
what he is doing there. Colin ordered him to leave the garden. The next day
Colin wrote to Dickon telling him that he is going to be exercising the option
in his lease to buy both the vegetable garden and the adjoining secret garden.
Advise Archibald.
General remarks
This question raises issues of priority, concerning registered title. This is governed
by the provisions of the LRA 2002. Are the four claimants’ rights, created during the
period when Mary (M) owned Misselthwaite Manor, enforceable against Archibald
(A), who is the disponee of registered title to the property for valuable
consideration? Chapter 3 of the module guide introduces the relevant legislative
principles and cases.
Law cases, reports and other references the examiners would expect you to use:
Williams & Glyn’s Bank v Boland; Abbey National Building Society v Cann; City of
London Building Society v Flegg; Chhokar v Chhokar; Thompson v Foy; Link
Lending v Bustard; Chaudhary v Yavuz; Ferrishurst Ltd v Wallcite Ltd; ss.2 and
27(2) LPA 1925; Family Law Act 1996; ss. 27, 29, 33, and 40 of the LRA 2002 and
paras 2 and 3 of Sch.3.
Common errors
• Including extensive analysis of the nature of the various claimants’ rights
even where this is either obvious or there are insufficient facts.
• Considering unimportant details about the formalities by which the rights
may have been created.

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 Examiners’ reports 2023

• Stating the priority principles without applying them fully to the facts and
explicitly identifying how the impact on A’s registered title.
A good answer to this question would…
recognise that Ben (B) may have an easement but that it is not clear how it was
created and discuss whether it was legal or equitable. The advice should therefore
work methodically through the possible difference this makes to the issue of priority
depending on relevant provisions in the LRA 2002. As Dickon (D) does not have a
basis to claim (either by constructive trust or proprietary estoppel) a beneficial
interest in Misselthwaite Manor, he may only be able to rely on his ‘home right’
(under the Family Law Act 1996). This cannot be an overriding interest. D will
therefore need to have protected it on the register. By contrast, if Sowerby's (S)
financial contribution at the time M purchased Misselthwaite Manor generated a
trust interest for her, then the advice should consider if it has priority. Good answers
will therefore cover protection by restriction, the operation of overreaching and the
possibility that her interest overrides. Was M in discoverable actual occupation of
the cottage?
As Colin’s (C’s) lease of the vegetable garden is granted for five years might it take
priority as an interest that overrides? Good advice will consider the position if a
deed had not been executed, working through how equitable leases may have
priority under the LRA 2002. Here, credit is available for analysing if C can be said
to be in actual occupation in a way that satisfies the other conditions in Sch.3,
para.2. On this, what is the significance of the sign C erected in the garden? If C
has not entered a notice to protect his option, does he have an interest (Webb v
Pollmount) of a kind that gains dual protection under Sch.3? Additionally, can C be
said to be in actual occupation of the land to which the option relates (the secret
garden)?
Poor answers to this question…
• Completely failed to consider the priority issues; or
• Confused the priority principles in registered title under the Land
Registration 2002 with the previous rules contained in the LRA 1925.
• Advised A on the erroneous assumption that priority depends on the
unregistered land law rules (land charges; overreaching; and the doctrine of
notice).
Question 4
‘The Land Registration Act 2002 has rightly reduced the possibility that the
registered owner will be displaced by an adverse possessor. However, as
adverse possession has not been abolished, the courts could, and should,
interpret the elements required to make a claim in ways that favour the true
owner.’
Discuss.
General remarks
Chapter 10 of the module guide introduces adverse possession.
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 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 LRA 2002;
Chapter 17 Updating the Land Registration Act 2002 (Law Com 380, 2018).

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Common errors
• Writing a purely descriptive survey of the topic.
• Failing to discuss the terms of the quotation and the ideas it contains,
especially those in the second sentence about the interpreting the elements
to favour the true owner.
A good answer to this question would…
go beyond presenting a descriptive account of the process in the LRA 2002. It
should engage with the quotation’s assertion, by arguing if/how the process in the
LRA 2002 has reduced the opportunity for an adverse possessor to gain registered
title. This might be done by recognising, among other things: it has replaced
limitation periods with eligibility to apply; created a system that gives the registered
owner warning of the adverse possessor’s presence on the land; and the limited
circumstances in which the register will be altered in favour of the adverse
possessor (identified in Sch. 6, para.5). Good answers will make sure to discuss
whether the 2002 Act has ‘rightly reduced’ the prospect described in the terms of
the question. Here, answers should offer reasoned arguments and present your
own thinking. The second sentence in the quotation invites discussion of the case
law on adverse possession but by reference to a specific perspective. How could
the courts interpret the legal elements (factual possession, intention and adversity)
to favour the owner; and should they do that? Here, there are obvious targets for
debate suggested by the current approach to these elements, especially where they
have been subject to shifting judicial attitudes over time. They include: exploring
Pye’s emphasis on intention to possess being for the time being rather than own the
land forever; the relevance of the owner’s future use for the disputed land and the
rise and fall of the implied licence doctrine; and the possibility that the owner can
unilaterally confer a licence to stop adverse possession.
Poor answers to this question…
• Contained inadequate knowledge of the principles and concepts of adverse
possession
• Misdiagnosed the question (e.g. easements).
Question 5
In 2019 five artists, Suerat, Turner, Uglow, Vermeer and Warhol, purchased a
house next to the sea. They chose the house because it was isolated and
benefited from large windows providing ideal conditions for them to paint. All
five contributed whatever they could afford to the cost of buying the house. It
was conveyed to all of them as legal and beneficial joint tenants. At the time,
Turner was only 17 years old.
In 2020 when Suerat grew disillusioned with painting, he agreed to sell his
interest in the house to Warhol. A few weeks later, he sold a picture to a
gallery in France and decided to carry on trying to make a living as an artist.
He persuaded Warhol not to proceed with the sale of his interest and got all
the others to agree that he could move his son, Hockney, to live with them in
the house. Hockney, who was five years old, had lived with his mother until
she died. Suerat’s doctor had said that living in the seaside house would help
Hockney, who has asthma and anxiety.
In 2022 Turner grew bored of painting the sea. He told the others he wanted to
move to the town to specialise in painting portraits. Uglow expressed an
interest in buying Turner’s interest in the house. They discussed a possible
purchase price. However, Turner changed his mind about selling. He
mortgaged his interest in the house to the Artful Bank to pay for a college

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course in London to learn how to become a digital artist. Turner told the
others that he would not be using the house for some time.
Last month Vermeer moved to Amsterdam. Before Vermeer left, she painted a
note on a blank canvas that was standing on an easel in the artists’ studio at
the house. Her note explained that she wanted to sell her share without delay.
Knowing that Turner did not visit the house anymore, she texted him the
same message. Vermeer got an acknowledgement that her text had been
delivered to Turner’s telephone. However, Turner did not read it. He had
already left the country because he could not keep up his mortgage
repayments to the Artful Bank.
Uglow, Vermeer and Warhol have now all agreed that the house should be
sold. The Artful Bank also wants the house to be sold. However, Suerat wants
to stay there to paint and he is concerned that a sale would be harmful to
Hockney’s physical health and mental well-being.
Advise the co-owners: (a) about their respective shares in any proceeds of
sale; and (b) whether or not the house will be sold.
General remarks
This is a standard and straightforward problem question on severance and aspects
of the statutory framework regulating the trust of land. You will find these topics
introduced in Chapter 4 of the module guide.
Law cases, reports and other references the examiners would expect you to use
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; s.3(4) AEA 1925; ss.14 and 15 of TLATA 1996; and s.335A IA 1986.
Common errors
• Wasting words with detailed and abstract explanations of basic concepts
(forms of co-ownership; survivorship and severance).
• Overcomplicating the determination of equitable co-ownership when the
house is acquired.
• Concluding that a tenancy in common of the beneficial estate is created in
2019, therefore removing any credible basis for giving advice on severance.
• Taking the severance issues out of chronological order.
• Omitting advice on the potential for some of the events (most commonly
those concerning T in 2020 and S in 2022) to achieve severance.
• Listing the factors in s.15 of TLATA 1996 without properly giving advice, in
the light of case law, about the differing possibilities of how the factors may
apply to the facts.
A good answer to this question would…
work through the events, starting from 2019, to consider how they affect the
devolution of the beneficial ownership and determine the share each co-owner has
in 2023. In 2019 only four of the purchasers hold the legal estate (Turner (T) is
incapable as a minor). Why exactly are there five beneficial joint tenants rather than
tenants in common? Might Suerat’s (S) agreement to sell his interest to Warhol (W)
in 2020 amount to severance? By which common law method might that have
happened? Will their agreement need to be written for this purpose? If the

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agreement severs, what size of share does S then hold as beneficial tenant in
common?
In 2022, has T done enough to trigger any of the common law categories in
Williams v Hensman by simply mentioning the idea of selling? What does the case
law tell us about this possibility? The discussions with Uglow (U) call for exploration
of the ideas of mutual agreement and course of dealing. Which cases help to
establish the parameters of these methods? Are there any legal or factual
obstacle(s) to them applying to these facts? T’s mortgage will operate as an act on
his own share: First National Securities v Hegerty. In which case, good answers will
spell out what this means for the size of the share created in his favour and the
corresponding impact on the value of the remaining joint tenancy.
In 2023, is Vermeer’s (V) painted note valid and effective as severance as a written
notice under s.36? Is the medium (artist’s canvas) valid? Does it matter if V does
not sign the canvas? What does Harris v Goddard require about the substance of
what V says for it to effect severing? If it is a valid notice, how, if at all, has it been
given to (served on) the other joint tenants. Does s.196(3) LPA 1925 assist in
determining how this may have happened? Is it relevant that T is currently away
from the house? If so, does the text message to him count as ‘a notice in writing’,
and has it been served on him? The fact that he does not read it is irrelevant
because that is never a requirement for a valid s.36 notice. Here, good advice will
recognise that these are not ‘live’ issues because T has already severed by
mortgage. The advice should round off part (a) by identifying the respective parties’
entitlement to the proceeds of sale if the house were to be sold in 2023.
For part (b), good advice needs to focus on the operation of ss.14 and 15 of TLATA
1996. It should go beyond identifying the relevant factors in the non-exhaustive
statutory list. Credit can be given for advice that: (a) draws appropriately on case
law; and (b) argues about how the court may balance the relevant matters and
exercise its discretion on these facts.
Poor answers to this question…
• Lacked adequate and secure knowledge of the principles of severance (in
Williams v Hensman and s.36 LPA 1925) and/or how they apply to the
facts.
• Confused the application of s.15 of TLATA with the separate regime for
sale by a trustee in bankruptcy under IA 1986.
Question 6
Liddell owns a large house close to the town’s world-renowned Sports
Academy where he has spent his career employed as an athletics coach. The
house has two floors above ground, each arranged as a separate flat. There is
also a larger flat in the basement of the house. The basement flat has three
bedrooms, a small room containing gym equipment and its own entrance at
the rear of the house. For a number of years Liddell has lived in the first floor
flat and rented the other two flats to students at the Sports Academy.
In September 2022 Liddell asked his nephew Tom, who was enrolling on the
diving degree programme at the Sports Academy, if he wanted to move into
the basement flat. Tom asked if he could find others to share the flat and
make it affordable for him to live there. Tom advertised for ‘housemates’
online. As a result, Dimitri and Hattie, two students on the gymnastics degree
programme at the Sports Academy, visited the basement flat. When Liddell
met Dimitri and Hattie, he assumed that they were friends who would occupy
separate bedrooms, even though they were in fact a couple who planned on

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 Examiners’ reports 2023

sharing a bedroom. Wanting to keep things business-like and formal, Liddell

made Tom, Dimitri and Hattie sign an ‘Agreement for Occupation’. The
agreements, which contained identical terms, provided that: each occupier
must pay £95 per week for four years. Liddell included a term in the
agreement by which he could use the gym room in the flat whenever he
wanted. The agreement also provided that Liddell would retain a key to the
flat. Tom moved into the basement flat the week before term started; but
Dimitri and Hattie only joined him a week later on their return from a
gymnastics competition in Japan. After they had all moved in Liddell told
Tom, Dimitri and Hattie that he would seldom, if ever, be using their gym
room because he preferred to use the facilities at the Sports Academy.
For the first six months the arrangement worked well. In March 2023 Liddell
used the key to the house once, after neighbours said they could smell gas.
He noticed a lack of fresh food in the kitchen, so once a month he would
leave vegetables he grew on his allotment inside the back door of the flat.
In September 2022 Liddell’s brother, Montague, asked if he might come to live
in the ground floor flat. Montague explained that he was not sure how much
longer he could continue to live independently because he was prone to
falling over. Montague confided in Liddell that he hoped that if he ever needed
to be looked after he could go to live with his daughter, Jennie, and her
family. They agreed that Liddell would get his lawyer to grant Montague a
formal lease for ‘three years or until such time as Montague might choose to
move to live with his daughter, Jennie’. Montague moved into the flat and
started to pay the agreed rent. Liddell forgot to ask his lawyer to make the
formal grant of a lease and Montague decided not to press the matter.
Liddell is considering selling the house and moving to America where he has
received an offer of a coaching job at Stanford University. He therefore wants
to know if the occupiers of the ground floor and basement flat are licensees
or tenants.
Advise Liddell.
General remarks
This is a standard lease/licence problem question, for which Chapter 5 of the
module guide provides relevant introductory material and guidance.
Law cases, reports and other references the examiners would expect you to use
Street v Mountford; 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.149(6) LPA 1925; ss. 1 and 2 LP(MP)A 1989; ss.52(1) and 54(2) LPA
1925.
Common errors
Paying insufficient attention to applying the legal material on exclusive possession
to the detailed facts was a common error.
A good answer to this question would…
advise Liddell (L) about the legal status of Tom (T), Dimitri (D) and Hattie’s (H)
occupation of the flat in which they live. As a matter of law, what determines if the
occupants jointly share a lease of their flat? Looking at the facts in the scenario,
how much (or little) do you need to say about the law and facts on the certainty of
their term and rent? Likewise, how important to determining their status as tenants

13
or licensees is establishing whether the formality of their agreement makes it legal
rather than equitable? Will it really matter to deciding the relationship between L
and the three occupants? Good answers will therefore weigh up how much advice
is needed on all these issues. Put differently, do the facts disclose more central and
obvious issues to the relevant to determining the content of the rights created and
the lease/licence distinction? This makes it wise to give the fullest possible attention
to the detailed facts on whether T, D and H have exclusive possession as joint
tenants of the basement flat. This requires an ability to work with Lord Templeman’s
approach in Street as considered in subsequent case law (such as Antonaides and
AG Securities). The facts suggest a range of issues need to be considered. How
significant are L’s subjective intention and his labelling the agreement (occupation
agreement)? Does it matter that T moved in earlier than D and H? What is the
significance of the nature of T, D and H’s liability for rent under the agreement? In
addition, the advice should consider the impact of L’s retention and use of the key,
initially for an emergency and later to deliver vegetables. What is the effect of
allowing L use of the gym room; and the reason he later gives for not needing to do
so? Here, good answers will draw on relevant case law to argue different possible
outcomes about whether they have a lease.
Have L and Montaque (M) merely entered into a valid agreement to create a legal
lease, which has the potential to be an equitable lease by virtue of the doctrine in
Walsh v Lonsdale? (Do the facts put the form of L and M’s agreement beyond
question; and what part do the formality rules in s.2 LP(MP)A 1989 play in the
availability of Walsh)? In any event, for there to be a valid equitable lease, the
maximum duration of the specified term must satisfy the Prudential/Mexfield test of
prospective certainty. Might the facts allow the words in the agreement to be
construed both so that the stated term fails the test and, alternatively, that it
complies with it? If the term is void for uncertainty, what does that mean for the
legal basis of M’s occupation of the flat? Here, good advice should consider the
solution offered by Mexfield, the role of intention (Southward Housing Co-operative
v Walker).
Poor answers to this question…
contained insufficient legal material that was accurate/relevant.
Question 7
In Rhone v Stephens (1994) Lord Templeman confirmed that the benefit but
not the burden of a covenant may run with the land.
Critically assess the effect this rule has on the law of freehold covenants and
indicate how, if at all, you think the law might be improved.
General remarks
The topic of freehold covenants is dealt with in Chapter 8 of the module guide.
Law cases, reports and other references the examiners would expect you to use
Rhone v Stephens; Austerberry v Oldham Corporation; Tulk v Moxhay; Haywood v
Brunswick PBS; Halsall v Brizell; Davies v Jones; Goodman v Elwood; Roake v
Chadha; Crest Nicholson v McAllister; ss.56, 78, 79 LPA 1925; and s.1 Contract
(Rights of Third Parties) Act 1999.
Common errors
• Writing a general essay that surveys the topic.
• Focusing unduly on passing of the benefit of a covenant without directing
what was said to the terms of the question.

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 Examiners’ reports 2023

A good answer to this question would…

recognise and assess the reasons why Rhone maintained the prohibition on
passing the burden of covenants established by the Court of Appeal in the 19th
century (Austerberry v Corporation of Oldham). It means that only the burden of
restrictive covenants can pass, and then pass in equity. Credit will be given where
answers realise that the question specifically asks for an assessment of the effect of
the ‘rule’ on freehold covenants. Good answers will therefore do well to probe the
practical inconvenience the rule creates on the running of the burden of positive
covenants to successors in title to the covenantor’s land. This includes the
inconvenience for leaseholders who share communal facilities. It is also relevant to
assess the effect of various legislative and conveyancing devices that have
attempted to circumvent the rule. These include leasehold enfranchisement,
commonhold (which despite recent government plans to reinvigorate it has not
proved popular), the doctrine of ‘mutual benefit and burden’ and chains of indemnity
covenants. Are these workarounds as good as direct enforceability of a covenant?
Good answers will make sure they respond to the prompt in the question by
considering how the law may be improved and answers may debate whether the
prohibition should be lifted. Lord Templeman’s views in Rhone, and the scholarly
commentaries surrounding it, provide plenty of ammunition to challenge the rule
and its orthodox approach to interpreting s.79 LPA 1925. The question also allows
for a critical rehearsal of Law Commission thinking and proposals, including those
contained in its most recent report, Making land work: easements, covenants and
profits à prendre, Law Com No. 327. These include the unadopted
recommendations for replacing covenants with a new interest in land, the ‘land
obligation’, which would apply to positive covenants.
Poor answers to this question…
Ignored the precise terms of the question, providing an essay that contained little
evidence of knowledge of the relevant legal ideas.
Student extract
In this essay it shall be argued that although the rule that the burden of
freehold covenants cannot run with the land, established in the landmark
case of Rhone v Stephens, might be a topic of contention and vivid
discussions in theory, in practice of modern professional conveyancing it has
little practical effect due to the established exceptions and conveyancing
devices used. Therefore the law in this area is satisfactory enough and not in
need of major, if any, reform.
First, it is important to understand why the rule in question exists and what it
truly means. In Rhone v Stephens it was explained that no person should be
burdened by a contractual promise made to another, if they did not
themselves, and on their own accord, make that promise. Simply put, it would
be a violation of the general rule of English law if a person who is not a party
to a contract (i.e. who is not the original covenantor) could be liable on it. This
seems perfectly understandable in the context of general contractual
obligations, but freehold covenants are more than that. They are contractual
obligations pertaining to the land and as such they are capable of attaching
themselves to the land and becoming truly proprietary. So should there then
be some difference between freehold covenants and simple contractual
obligations?
Indeed there should, and this is where the intervention of equity came along.
In the case of Tulk v Moxhay it was recognized that the burden of negative
covenants, i.e. those which restrict the owner of the burdened land from
using their land in a certain way, could pass to the successors of the original

15
 covenantor, under certain conditions. Such conditions include that the
covenant: (i) touches and concerns the land, (ii) was made for the benefit of
the original covenantee's land, (iii) must be intended to run with the land and
(iv) must be appropriately protected, i.e. registered. Although they seem
onerous at first glance, these requirements are not difficult to satisfy for they
merely reflect the very nature of freehold covenants as proprietary rights.
Indeed, if the covenant was unrelated to land, or was not made for the benefit
of land, or was meant to only be binding on the original covenantor it would
not be proprietary at all. The fact that these requirements for passing the
burden are not difficult to satisfy, coupled with the fact that they correspond
with similar requirements for passing the benefit, it is clear that in equity
restrictive covenants will, more often than not, be enforceable between
successors of the original covenantor and the original covenantee.
Furthermore, as equity offers a variety of remedies including an injunction or
perhaps specific performance, whereas the law only offers damages it is
clear that enforcing a restrictive covenant in equity is perfectly possible,
probable and perhaps preferred due to the remedies available.
The above suggests that the real thrust of the rule established in Rhone v
Stephens is the inability of positive covenants to pass at all, seeing as
positive covenants are not within the rule established in Tulk. This might be
for the best. After all, restrictive covenants require no positive action on
behalf of the covenantor's successors in title, whereas positive covenants
most often include requirements of maintenance and payment of fees. In
essence positive covenants truly make one responsible for performing
contractual obligations undertaken by another (which is against the general
spirit of the English law), whereas restrictive covenants merely consist of not
breaking such obligations and adhering to the established status quo. With
that said, English law fairly recognized that there would be situations in which
it would be unfair for a successor in title to the covenantor to be able to avoid
performance of a positive covenant. This exception forms the doctrine of
mutual benefit and burden, established in Halsall v Brizzel. Simply put, this
doctrine prohibits anyone from benefiting from a right, unless they also bear
the burden which is intrinsically linked to such right. Therefore, if the right and
corresponding burden were conferred in the same transaction, if they are
truly mutual so that there is no right without the burden, and if the person who
is supposed to bear the burden has the opportunity of disclaiming the benefit
(per Thamesmead Town v Allotey), if they choose to continue enjoying the
benefit they will be required to bear the burden. The rationale for this doctrine
is clear - one cannot enjoy a right if they don't contribute to its maintenance.
Following this reasoning, it is further clear that the rule established in Rhone
only really prohibits from passing, those positive covenants which do not
satisfy the criteria of mutual benefit and burden, thus further diminishing its
scope.
Lastly, there are a number of conveyancing devices which can be used to
circumvent the rule established in Rhone - the rentcharge coupled with the
right of re-entry, which can effectively make any owner liable to pay a
designated sum for fear of losing his or her estate in land, the artificially long
lease whereby the rules applicable to freehold covenants are completely
circumvented and rules relating to leasehold covenants apply, as well as the
conveyancing device most used in practice - a chain of covenants.
The chain of covenants may take two general forms, the first being a chain of
indemnities. Through the chain od indemnities the original covenantor
covenants with his immediate successor (and so on) that the successor shall

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 Examiners’ reports 2023

indemnify him from any claims or damages suffered as a result of a suit for a
breach of covenant (because the original covenantor remains liable for
damages at law to whoever is the present owner of the benefited land,
provided that the benefit has passed to them). Although the chain of
indemnities has its uses, its main downfall is the fact that the only available
remedy are damages. The present owner of the benefited land is more likely
to want the covenant to be performed, rather than claim damages (unless of
course the requirement is for payment where damages could be calculated
more easily) so in this sense it might be an unsatisfactory remedy for the
person wishing to enforce the covenant.
With the above said there is a second conveyancing device, which is most
used in practice, and which effectively allows any positive covenant to be
enforceable by any owner of the benefited land against any owner of the
burdened land. In essence, it comes down to the original covenantor
covenanting that he or she will perform a positive covenant, but also make
certain that their successor in title shall also personally covenant to whoever
is the present owner of the benefited land that they shall also perform the
positive covenant and covenant with their successors the same. Following
such agreement, a restriction can be (and in practice is) placed in the Land
Registry, thus preventing further dealings in land if the requirements of the
restriction (i.e. covenant) are not met. This is a fairly simple and effective way
to ensure easy enforceability of any covenant at law and it is no surprise it is
always used in practice of professional conveyancing.
Bearing all of the above in mind, and especially the fact that through
subsequent case law, doctrine of mutual benefit and burden and
development of specific conveyancing devices the rule established in Rhone
v Stephens poses very few practical problems, I would submit that the law in
the area of freehold covenants is not in need of change. It is important to
remember that the rule was established to preserve a long standing principle
of English law, that no one should be liable for someone else's positive
obligations and that is a completely valid goal. The above mentioned chain of
covenants coupled with the restriction in the Land Register ensures that each
subsequent owner of the burdened land enters freely, into their own,
separate contract with the owner of benefited land and thus undertakes a
new obligation for which he is liable. It seems to me, if anything, that the rule
established in Rhone v Stephens led to the improvement of conveyancing
practice while also preserving the long established principles of English law,
and for that reason it should not be changed.
Comments on extract
Overall: This answer is informed, displays some admirable qualities and shows a
secure understanding of relevant aspects of the topic. There are clear signs of an
attempt to engage with the ideas in the question. It achieved a 2:1 standard.
Relevance: It is certainly worthwhile starting an answer by identifying what it is
going to contain. One good way of doing this is briefly to set out your agenda and
say how you intend to engage with the question. The extract’s first paragraph tries
to do this and picks out relevant issues. However, do you think it might be edited to
work even more effectively as an introduction and read less like a conclusion? How
might you do that? Much of the extract covers a range of legal ideas that obviously
relate to the question (such things as: the reason for the rule; the intervention of
equity; indemnity clauses and mutual benefit and burden). However, throughout, the
text might be improved by increasing the extent to which the material is subjected to
critical assessment. It is also worthwhile thinking how best to maximise the
relevance of everything you say and make sure that you have spelt that out to the

17
reader. So, when the extract turns to consider the passing of the burden of negative
covenants in equity, it could be expressed to make the relevance much more
obvious. Consider if and how this and other parts of the extract might be better
shaped to highlight its relationship to the terms of the question? Also, what do you
think about the extract’s claim that these equitable requirements are not difficult to
satisfy? Is it clear why the writer thinks that? It is important to ensure that the
relevance of all claims is fully and explicitly established. That way the reader will
understand them, even if they disagree. It is perfectly acceptable for the extract to
take the stance that there is no need for improvement. However, are you entirely
convinced by the reason the writer gives for that view? Moreover, the quality of this
part of the answer might have been strengthened by rehearsing possible
improvements before explaining why they are not needed.
Accuracy of information and use of authorities: The content is generally
accurate and refers to some of the key authorities one might expect to see in an
answer. There are, however, plenty of places throughout the extract where citing
authority would have bolstered the impact of the claims and statements that are
being made. In addition, consider how a more nuanced and detailed analysis of
Lord Templeman’s approach to positive covenants might have improved the quality
of the answer. There are several secondary sources, notably scholarly articles
(mentioned in the module guide and good textbooks) that might have added an
extra dimension to the answer.
Clarity and presentation: Overall, the answer is written clearly and it is easy to
follow. The presentation is satisfactory, although minor adjustments might have
been welcome (including making consistent use of italics for the names of cases
and spelling case names accurately).
Question 8
Six months ago, when Rose retired from running her ceramics business, she
sold her registered title to The Kiln, to Siobhan. The Kiln has several pottery
studios, outbuildings and Spode House, which is at the entrance to The Kiln.
As Rose wanted to continue living in Spode House, she did not include it as
part of the land she sold to Siobhan.
Rose now seeks your advice on each of the following matters:
(a) if she can remove the large advertising sign for The Kiln that hangs on
the side wall of Spode House facing the main road. Rose wants to
replace the sign for The Kiln with one that promotes the monthly
pottery classes she has started to hold at Spode House;
(b) if she can stop Siobhan from using a narrow passageway belonging to
Spode House to reach the only door to a disused outbuilding that
belongs to The Kiln. The outbuilding contains an antique pottery oven.
Siobhan plans on renovating the oven so that it can be used to make
pottery using traditional methods. Rose had not used the passageway
or the door for some years before she sold The Kiln because the
outbuilding was damp, and the pottery oven broken;
(c) if she can use one of the outside courtyards at The Kiln to practise
judo. A few weeks after Siobhan purchased The Kiln, Rose wrote
asking Siobhan if she minded her continuing to use the courtyard for
her daily judo workout. Siobhan gave her written permission.
However, after some of the workers at The Kiln objected, Siobhan
changed her mind and she has now asked Rose to stop using the
courtyard for her judo practice; and

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 Examiners’ reports 2023

(d) if she can leave her camper van in a shed located behind The Kiln.
Rose had always parked the camper van in the shed throughout the
time she owned The Kiln. Rose explained to Siobhan that the shed
was ideal because the door is fitted with a keypad that requires an
entry code and it is overlooked by a CCTV camera.
Advise Rose on each of the above matters.
General remarks
Chapter 7 of the module guide deals with the characteristics and methods for the
creation of easements that feature in each of the four parts of the question.
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.
Common errors
• Overlooking the potential difficulties (legal and factual) about claiming that
recreational rights (part (c)) and the right to park vehicles (part (d)) can exist
as easements.
• Confusing grant and reservation; and misunderstanding the available legal
bases for implied creation where the claim is to reserve rather than grant an
easement.
• Failing to follow the structure in the question by dealing with each part
separately.
A good answer to this question would…
immediately start by giving advice about the eligibility/creation of the various rights
as easements without first stating the guidelines in Re Ellenborough Park and
Regency Villas v Diamond Resorts in abstract terms.
(a) Can the right to hang a sign be said to benefit the dominant tenement if it
involves the promotion of The Kiln as a business? Here, the advice may
juxtapose the approaches in Hill v Tupper with Moody v Steggles. Is there a
sufficient legal basis for implied grant through necessity and common
intention? Given that R used the sign when she owned both properties,
might that point to the possibility that S may have acquired it via Wheeldon
v Burrows? And might s.62 also help S claim an easement had been
created that would frustrate R’s wish to replace it with a sign advertising her
own business? Good advice will take care to make sure the advice
considers how these legal principles might apply to the facts.
(b) Is there any difficulty in establishing that S’s claim is to use a right of way
across the passageway belonging to R ticks all Re Ellenborough
guidelines? In which case, might this part of the advice be disposed of quite
briefly? Good answers will therefore be wise to prioritise the more taxing
question of whether the right was impliedly granted when S acquired The
Kiln. Doing this will use the admittedly limited facts to explore the difficulties
in applying each of the available ways easements may be impliedly
created. Might the inaccessibility of the outbuilding lend itself to a claim to
necessity: Nickerson v Barraclough? Does s.62 offer a possible means of
implied acquisition? Will it matter that there was no diversity of occupation
before R granted S title to The Kiln (Sovmots; Platt v Crouch; Wood v
Waddington)? What are the requirements for arguing that the rule in
Wheeldon v Burrows could apply on these facts?

19
 (c) R will need to establish that the right to practise judo is capable of being an
easement. Here P’s greatest obstacle comes in arguing convincingly that
the right falls within the Re Ellenborough/Regency Villas criteria. Why? If it
can exist as an easement, then the written agreement with S creates either
an express legal (if the writing is a deed) or an equitable easement (writing)
and, as such, it should be either appropriately registered (s.27) or protected
by entering a notice within the terms of the LRA 2002.
(d) Presumably, R will have no difficulty in showing both that the right to park
the camper van accommodates her tenement and meets the other parts of
Re Ellenborough’s characteristics that easements must possess. There is,
however, scope for advice on the different judicial approaches (represented
by the Court of Appeal in Batchelor v Marlow and Lord Scott in Moncrieff)
about when claims to parking rights can be an easement. Not only is the
state of English law on ouster unsettled but it is also a question that has
attracted considerable academic attention. Credit is therefore available for
integrating relevant secondary views into the advice. Good answers will
also take care with the facts in giving advice. So, for instance, does it
matter to speculate about the size of the vehicle relative to the size of the
shed? What, if any, significance is there that the shed is locked? Even if the
right is capable of existing as an easement, R may will need to show that
she expressly or impliedly reserved the right when she sold The Kiln to S.
When it comes to implied reservation by necessity, is it enough that R
seems intent on securing the camper van rather than make Spode House
accessible? What is required to establish that S and R had a common
intention?
Poor answers to this question…
contained insufficient relevant/accurate legal information and application of it to the
facts.

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