University of Essex School of Law

Do not write your name on the cover sheet or essay

Assignment Cover and Feedback Sheet

Module Information
Module Title: Foundations of Property Law
Module Code: LW109

Registration Number
2 0 0 1 4 4 7

Word Count 1499

Declaration:
 I have read and understood the University Regulations on Academic offences.
 I certify that the attached is all my own work and that the word length stated above
is accurate

Marking and Feedback

 Please contact Bev Jackson for support with academic writing skills
bjackson@essex.ac.uk

First Marker Ting Xu

If in moderation sample
Second Marker/Moderator

Mark Penalty Final Mark 80

Reason for penalty and marks deduction:

This is an excellent essay that identifies key issues. It refers to a wide range of sources including
case law and legislation. It is also good to see the reference to academic commentary. It critically
engages with relevant materials. Well done.

Overall Comments and Feedback:

1
Essay Feedback: Level 4
Upper 1st (80+) 1St (70-79) 2.1 (60-69) 2.2 (50-59) 3 (40-49) Fail (under 40)

Research Identifies a wide Identifies a range of Identifies essential Identifies some Identifies some Identifies no, or
range of relevant relevant cases and cases and statutes, essential cases and essential cases and very few materials
cases and statutes, statutes, academic though there may statutes but with statutes,
academic commentary and be minor errors or some errors or
commentary and policy documents; omissions; does not omissions; does not but with major
policy documents, there may be go beyond the set go beyond the set omissions; does not
demonstrating research beyond material material go beyond the set
research beyond the the set material. materials
set material.

Evaluation of Sources are Sources are Sources are Sources may not be Sources are not Sources not
Sources evaluated for evaluated for evaluated for evaluated for evaluated for evaluated for
credibility and credibility and credibility and credibility and credibility or credibility or
relevance; weight is relevance; weight is relevance; sources relevance; sources relevance; most relevance
given according to given according are sometimes often given sources given
clear criteria criteria given inappropriate inappropriate weight inappropriate
weight weight

Understanding Systematic critical Rigorous Explains the Attempts to explain Significant errors of Understanding is
understanding of understanding of material and the material and understanding seriously defective
the material the material which demonstrates its demonstrate its
may engage relevance to the relevance to the
critically question, though question; some
there may be minor errors of
errors of understanding
understanding

Argument and A persuasive, well A consistent Attempts to May not respond to Significant passages No attempt to
structure supported and response to the respond to the the question directly of the work fail to address the topic
rigorous argument question, question, though though addresses respond to the
in response to the supported by a occasionally broad topic; topic; work lacks
question, supported clear structure material may not structure lacks structure
by a clearly be relevant or balance and/or
structured narrative relevant material clarity
omitted;
appropriately
structured

Language and Expression is clear Expression is clear Expression is clear Expression is Expression is Lack of clarity
presentation and fluent in formal and effective in and effective; sufficiently clear and sufficiently clear and and/or errors
written English; uses formal written generally in formal effective to effective to impede(s)
legal and scholarly English; uses legal English; some use communicate, communicate, communication;
language; free from and scholarly of legal and though may not be though may not be legal or scholarly
errors language; scholarly language; formal English; may formal English; no language not used;
occasional errors some errors attempt to use legal attempt to use legal frequent errors
and scholarly or scholarly
language; errors may language; frequent
be frequent errors

Referencing All sources are All Sources are Most sources are Some sources are Some sources are Referencing absent
and referenced fully and referenced in referenced; referenced but with referenced; OSCOLA
bibliography consistently, in OSCOLA, with some OSCOLA is followed frequent errors in not followed
OSCOLA, with errors but with some OSCOLA;
occasional errors errors

Please note: not all criteria are equally important when awarding a mark
Problem question Feedback: Level 4
Upper 1st (80+) 1St (70-79) 2.1 (60-69) 2.2 (50-59) 3 (40-49) Fail (under 40)

Identifying Identifies all issues Identifies all key Identifies most key Identifies some key Identifies some issues Fails to identify any
legal issues within facts; issues and some issues and explains issues, but with some but with major key issues.
within the explains their minor issues; their significance; omissions and/or omissions or severe
facts significance explains their there may be minor problems of problems of
persuasively and significance well. errors or omissions understanding. understanding.
concisely.

Identifying Identifies relevant Identifies Essential relevant Some relevant law Some relevant law Fails to identify any
and law; explains the relevant law well; law identified, identified, but with identified, but with applicable legal
evaluating legal framework aware of wider possibly with minor minor omissions or significant omissions sources. Sources
relevant law well within its legal context and errors of errors of or errors of cited are irrelevant
wider context; any areas of understanding. understanding. Some understanding. Many to the question set
highlights policy debate. sources are not sources are not
debates where authoritative. authoritative.
relevant.

Applying the Applies law to Applies law to Applies law to all key Applies law to most Several major errors Does not apply law
law to the produce detailed produce issues; explains key issues; some major or omissions in to facts to produce a
facts and persuasive persuasive reasoning, including errors or gaps in showing how the law conclusion.
conclusion; conclusion; some detail; draws reasoning. May not applies to the facts.
explains explains reasonable explain how the law
reasoning; reasoning in conclusions. . applies to the facts.
explores detail; explains
alternative alternative
outcomes where outcomes where
applicable applicable.

Structure Issues addressed Issues addressed Issues mostly Some attempt to use Significant portions of No apparent
in a very clear in a clear addressed following IRAC, but structure answer lack any structure.
IRAC sequence structure, logically IRAC; some passages may be disorganised, coherent structure; no
throughout; set out with are disorganised, unbalanced or evidence of planning.
efficient structure effective use of unbalanced or repetitive.
allows for a IRAC throughout. repetitive.
concise and
detailed answer.

Language and Expression is clear Expression is clear Expression is clear Expression is Expression is Lack of clarity and/or
presentation and fluent in and effective in and effective; sufficiently clear and sufficiently clear and errors impede(s)
formal written formal written generally in formal effective to effective to communication;
English; uses legal English; uses legal English; some use of communicate, though communicate, though legal or scholarly
and scholarly and scholarly legal and scholarly may not be formal often not in formal language not used;
language; free language; language; some English; may attempt English; no attempt to frequent errors
from errors occasional errors errors to use legal and use legal or scholarly
scholarly language; language; frequent
errors may be frequent errors

Referencing All sources are All Sources are Most sources are Some sources are Some sources are Referencing absent.
and referenced fully referenced in referenced; OSCOLA referenced but with referenced; OSCOLA No bibliography .
bibliography and consistently, OSCOLA, with is followed but with frequent errors in not followed.
in OSCOLA. some errors . some errors. OSCOLA. Bibliography Bibliography may be
Occasional errors. Bibliography is Bibliography is is incomplete and not absent.
Bibliography clearly set out and complete and well organised.
clearly set out and well organised. generally well
well organised. organised.

Please note: not all criteria are equally important when awarding a mark
 Question 2:

A)
Page | 4
Freehold covenants (FCs) are promises made between freehold landowners, which may

require one to do something or refrain from doing something on their land.1 For the current

FC to be binding on Oti, its burden must run with the farmland located beneath Garden

Cottage (GC). Therefore, Oti must be aware of the common law and equitable rules on

passing the burden of an FC. Passing the burden of restrictive and positive covenants is not

possible at common-law,2 although in equity the burden of restrictive covenants can run with

the land.3 It is therefore more preferable for Oti to follow the equitable rules on passing the

burden of an FC. Tulk v Moxhay4 has compartmentalised the equitable rules into five steps.

First, Emily’s (the covenantor) covenant must be of a restrictive disposition. Restrictive

covenants limit what a landowner can do with their land (i.e. use land only for residential

purposes)5 as opposed to positive covenants which require the landowner to do something

with their land (i.e. maintaining communal areas).6 Justifications for the allowance of the

burden of a restrictive covenant to be passed in equity include that it allows for the covenantor

(covenant creator) of the servient land to be unable to actively breach the FC. 7 The covenant

made between Emily and Lisa, restricted how Emily was to use GC. Emily was not permitted

to use GC as a public residence for multiple families. Therefore, it can be said that Emily’s

covenant is restrictive.

1
Chris Bevan, Land Law (2nd edn, OUP 2020) 457
2
Austerberry v Corporation of Oldham (1885) 29 Ch D 750, [1885] 5 WLUK 19
3
Ibid, 773 (Cotton LJ)
4
Tulk v Moxhay (1848) 41 ER 1143, (1848) 2 Ph 774
5
Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410, [2004] 1 WLR 2409
6
Thamesmead Town Ltd v Allotey (1998) 30 HLR 1052 (CA)
7
n1, 481

4
Secondly, the covenant must ‘touch and concern’ the land of the original covenantee.8 In P &

A Swifts Investments9 a three-limb test was devised in order to meet this requirement. The FC

must benefit the freeholder of the land, it must affect the nature, quality or value of the land;

and must not be expressed to be personal to the covenantee.10 As a single family would not

cause too much noise pollution or mess to the surrounding farmland, the covenant thus has

beneficial properties to the landowner (Lisa). This same line of reasoning can be said to have

a positive effect on the quality and aesthetic of the farmland. Finally, there is no express

wording of the covenant being made personal to Lisa. As the three-limb test has been met, the

covenant therefore ‘touches and concerns’ Lisa’s farmland.

Thirdly, there must be land capable of benefiting from the FC. To satisfy this step, the

dominant tenement ((DT) land benefiting from the FC) must be clearly identifiable; the

covenantee must have either owned or had an equitable interest in the DT at the time the FC

was formed; and the covenant must have been granted to benefit the DT. 11 Albeit the facts

lack a thorough description of the farmland; they do explain that it consists of two adjacent

farmhouses (one being smaller with a large garden) and thus so it is reasonably identifiable.

Evidently at the time the FC was made, Lisa was the legal freeholder to the farmland. Finally,

it can be inferred that the restriction of one family living in GC helps to maintain the

appearance and real estate value of the farmland. Therefore, the farmland is capable of

benefiting from the covenant.

8
Rogers v Hosegood [1900] 2 Ch 388, [1900] 7 WLUK 14
9
P & A Swifts Investments v Combined English Store Group Plc [1989] AC 632, [1988] 3 WLR 313
10
Ibid, 633 (Lord Oliver)
11
n1, 483; London & South Western Railway Co v Gomm (1882) 20 Ch D 562, [1882] 3 WLUK 13
Next, there must have been an intention for the FC to run with the servient land. This

intention must be expressed in some form of written documentation. Although if there is no

intention expressed, s79(1) of the Law of Property Act (LPA) 192512 will provide a safety-net.

Unless contrary evidence is presented, s79(1)13 provides a presumption that the covenanting

parties intended for the FC to run with the land to their future successors. 14 As no words

exclude the use of s79(1) in the deed, it is presumed that Emily intended for the burden to run

to her future successors (including Oti).

As the servient land (GC) is registered, the covenant must comply with the relevant

registration and notice requirements under the Land Registration Act (LRA) 2002.15 Sections

28(1) and 28(2) LRA 2002 ensures that the FC remains of priority, so long as it was made

‘first in time’ ahead of other interests.16 However, s29 LRA 2002 provides an exception to

those provisions. According to s29, if the successor in title to the covenantor has purchased

land for valuable consideration and notice of the covenant has been entered onto the Land

Registry, the FC will still take priority over any unprotected interests.17 However, if no notice

of the covenant has been entered onto the register, it will not be binding on the new purchaser

of the servient land.18

The facts fail to mention whether Emily’s covenant was made ahead of any other interests

relating to GC, so it is uncertain if s2819 would apply. Moreover, more information is needed

12
Law of Property Act 1925, s 79(1)
13
Ibid
14
Re Royal Victoria Pavilion (Ramsgate) [1961] Ch 581, [1961] 3 WLR 491
15
Land Registration Act 2002
16
Ibid, ss 28(1) and s28(2)
17
n15, s 29(1)
18
n15, s 29(2)(a)(i)
19
n15
as to whether notice of the covenant has been entered onto the Land Registry. So, Oti must go

to her local Land Registry office to see if notice of GC’s covenant has been enlisted on the

register. If it has, then she is bound by the covenant but if not enlisted, she is not bound by it.

Overall, it would be premature to come to a definitive conclusion as to whether Oti is bound

by the covenant, as not enough information has been given about whether notice of the FC

has been entered onto the register.

B)

Prima facie, ‘clause (b)’ appears to be an example of a half-secret trust (HST) as no

beneficiary is specified. Secret trusts such as HSTs need not comply with the Wills Act (WA)

183720 as they operate ‘dehors’ (outside) of wills; although academics argue the support for

this line of reasoning is not convincing.21 To determine the validity of ‘clause (b)’, Gorka

must have executed a valid HST. For HSTs to be valid, Ottaway v Norman explained three

requirements must be fulfilled. 22

Firstly, Gorka must have intended to create a trust. Intention to create a valid HST can be

done through the three certainties of intention, subject matter and the objects of the trust. 23 For

intention, the testator should use authoritative language to show an explicit intent to create a

trust. ‘Clause (b)’ is clearly an imperative statement detailing Gorka’s demand for Oti to hold

his estate on a trust. For the subject matter, the property and the beneficial interests must be

20
Wills Act 1837
21
David Wilde, ‘Secret Trusts: Dehors the Wills Act (Not the Will)’ (2020) CPL 163
22
Ottaway v Norman [1972] Ch 698, [1972] 2 WLR 50 (Brightman J); Blackwell v Blackwell [1929] AC 318,
[1929] 67 ALR 336
23
Kasperbauer v Griffith [2000] WTLR 333 (CA) (Peter Gibson LJ); Knight v Knight (1840) 49 ER 58 (ChD)
clear. For the objects of the HST, it must be clear as to who the beneficiaries of the trust are.

‘Clause (b)’ clearly states that Gorka’s estate is the subject of the trust, whilst his letter

expresses Luba to be the object of the trust. Therefore, there is a clear intention to create an

HST.

Secondly, the trust must have been communicated to Oti. Testators must communicate their

intention to create a trust and their proposed terms regarding how the trust property is to be

held to their intended trustees.24 This communication to the trustee must take place before or

when the will is finalised.25 Most importantly, the communication to the trustee should be

consistent with the will. In Re Keen,26 the testator’s letter containing instructions on how the

money would be distributed, was ineffective as it was inconsistent with the clause in the will.

The letter was given to the trustees before the will was executed but ‘clause 5’ indicated that

communication would occur in the future.

Oti’s case can be distinguished from Re Keen27 as there is consistency between the

communication and ‘clause (b)’ in the will. Gorka’s communication (both parol and written)

to Oti of his intention to create a trust took place before the will was executed. This

communication corresponds with the wording of ‘clause (b)’ which states that communication

has already occurred. Therefore, Gorka has effectively communicated the trust to Oti.

24
Re Boyes (1884) 26 Ch D 531, [1884] 3 WLUK 101
25
Wills Act 1837, s 9; Iain McDonald and Anne Street, Equity & Trusts Concentrate: Law Revision and Study
Guide (7th edn, OUP 2020) 118
26
Re Keen’s Estate [1937] Ch 236, [1937] 1 All ER 452
27
Ibid
Lastly, Oti must have accepted the trust. This acceptance can be done expressly or through

acquiescence. There is no indication of Oti displaying an express renunciation of Gorka’s

trust. Therefore, it is likely that a court would follow the judicial reasoning from Moss v

Cooper28 and hold that Oti’s silence equates to acceptance of the trust; and so, the final step

needed for a valid HST has been satisfied. In conclusion, it can be said that ‘clause (b)’ is

valid as all of the requirements needed for a valid HST enlisted in Ottaway29 have been met.

Although, as the beneficiary of the HST (Luba) died thirteen months before Gorka, it is worth

noting what effect this has on Oti. According to s25 WA 1837,30 when a beneficiary pre-

deceases the testator, the trust will lapse in time (fail). Although, the common law has shown

some exceptions to this rule in Re Gardner.31 Romer J explained that when a beneficiary

under an HST predeceases the testator, the trust would not fail but instead the trustee will hold

the property on a resulting trust for the beneficiary’s estate.32 Critique has surrounded Re

Gardner, particularly the illogical rationality of its decision but nevertheless it can still

apply.33 So therefore, Oti must now hold Gorka’s residual estate on trust for Luba’s estate.

28
Moss v Cooper (1861) 70 ER 782 (KBD)
29
n22
30
Wills Act 1837, s 25
31
Re Gardner [1923] 2 Ch 230, [1923] 3 WLUK 113
32
Ibid (Romer J)
33
Ho Siu, 'Keeping Secrets: A Critical Analysis of the Justifications for the Doctrine of Secret Trusts' (2015) 3
NE L Rev 75, 89
 Bibliography:

Primary Sources:

Cases:

- Austerberry v Corporation of Oldham (1885) 29 Ch D 750, [1885] 5 WLUK 19

- Blackwell v Blackwell [1929] AC 318, [1929] 67 ALR 336

- Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410, [2004]

1 WLR 2409

- Kasperbauer v Griffith [2000] WTLR 333 (CA)

- Knight v Knight (1840) 49 ER 58 (ChD)

- London & South Western Railway Co v Gomm (1882) 20 Ch D 562, [1882] 3 WLUK

13

- Moss v Cooper (1861) 70 ER 782 (KBD)

- Ottaway v Norman [1972] Ch 698, [1972] 2 WLR 50

- P & A Swifts Investments v Combined English Store Group Plc [1989] AC 632,

[1988] 3 WLR 313

- Re Boyes (1884) 26 Ch D 531, [1884] 3 WLUK 101

- Re Gardner [1923] 2 Ch 230, [1923] 3 WLUK 113

- Re Keen’s Estate [1937] Ch 236, [1937] 1 All ER 452

- Re Royal Victoria Pavilion (Ramsgate) [1961] Ch 581, [1961] 3 WLR 491

- Rogers v Hosegood [1900] 2 Ch 388, [1900] 7 WLUK 14

- Thamesmead Town Ltd v Allotey (1998) 30 HLR 1052 (CA)

- Tulk v Moxhay (1848) 41 ER 1143, (1848) 2 Ph 774

Legislation:
 - Land Registration Act 2002, s 28(1)

- Land Registration Act 2002, s 28(2)

- Land Registration Act 2002, s 29(1)

- Land Registration Act 2002, s 29(2)(a)(i)

- Law of Property Act 1925, s 79(1)

- Wills Act 1837, s 9

- Wills Act 1837, s 25

Secondary Sources:

Books:

- Bevan C, Land Law (2nd edn, OUP 2020)

- McDonald I and Street A, Equity & Trusts Concentrate: Law Revision and Study

Guide (7th edn, OUP 2020)

Journal Articles:

- Siu H, 'Keeping Secrets: A Critical Analysis of the Justifications for the Doctrine of

Secret Trusts' (2015) 3 NE L Rev 75

- Wilde D, ‘Secret Trusts: Dehors the Wills Act (Not the Will)’ (2020) CPL 163