Examiners’ reports 2022

Examiners’ reports 2022

LA2003 Property law – Zone A

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

1
points. Referring to the plan as you write can help keep the answer on track. It also
allows you to make sure you are explicitly tying all the points to the issues raised by
the terms of the question.
This year fewer students failed to follow important instructions, resulting in a
reduction in instances where only three questions were attempted. However, a
considerable number of answers ignored one part of a multi-part question. These
are both ways in which marks can be lost unnecessarily. They may adversely affect
your grade and sometimes even make the difference between success and failure.
It is important to express everything you say with care. The quality of English
matters because it affects the clarity of your answers. You need to convey what you
say plainly and precisely. This is an important academic and lawyerly skill. It
ensures that the examiners can follow everything you say. Of course, they
recognise that you are working under the pressure of time. However, this does not
excuse poor grammar, spelling, or a significant number of typographical errors.
Moreover, it is impressive to read well-presented answers, including those that
follow recognised citation practices and employ paragraphs appropriately. It is
permissible to resort to note form answers as a matter of last resort but only for the
final answer. It is important to make the notes count by using them to show how the
legal ideas apply to the facts/terms of the question.
Please note:
(a) references to the MODULE GUIDE are to the Property law module guide
2021/22 (‘module guide’);
(b) any errors that were present in the student extracts in the following section
(‘Comments on specific questions’) have not been corrected; and
(c) references to names of statutes commonly encountered in the Property law
module (including the Land Registration Act 2002, the Law of Property Act
1925 and the Trusts of Land and Appointment of Trustees Act 1996) are in
abbreviated form.

Comments on specific questions

Question 1
Kate is the registered owner of Consort House, which she purchased with her
partner, William. William contributed 40 per cent, and Kate the balance of the
purchase price.
Kate granted a lease of the stable block behind Consort House to Anne for
seven years. Anne uses it for her horse training business. Harry has an
easement over part of the grounds belonging to Consort House, giving him
access to the lake from his neighbouring property. Harry has not used the
easement for some considerable time since he and Kate fell out. Last year
Kate granted Megan a five-year option to purchase Consort House for
£2million.
Last month, Kate sold Consort House to Edward for £10million while William,
an army captain, was abroad on active military duty. At the time, Megan was
staying in the East Wing at Consort House while the roof of her cottage was
being completely re-tiled.
Edward is now the registered owner of Consort House.
Advise Edward.

2
 Examiners’ reports 2022

How, if at all, would your advice about William’s legal position differ if title to
the land was unregistered and the transactions were carried out solely
subject to the rules of unregistered title?
General remarks
This question raises issues of priority, mainly concerning registered title. Is E, who
is the purchaser of registered title to Consort House for valuable consideration,
bound to observe the three claimants’ rights that arose when K owned the property?
The relevant principles and cases about determining priority under the LRA 2002
are introduced in Chapter 3 of the module guide (W’s entitlement in unregistered
land is covered in Chapter 2.)
Law cases, reports and other references the examiners would expect you to use
Williams & Glyn’s Bank v Boland; Abbey National BS v Cann; City of London BS v
Flegg; Chhokar v Chhokar; Stockholm Finance Ltd v Garden Holdings Ltd;
Thompson v Foy; Link Lending v Bustard; Chaudhary v Yavuz; Caunce v Caunce;
Kingsnorth v Tizard; 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
Common errors included: (a) devoting far too much attention to the nature and
creation of the various rights (for which there was limited call and information); (b)
stating the priority principles without applying them fully, particularly where the facts
allowed (W’s overriding interest); and (c) giving advice on how the unregistered law
principles apply to all of the parties not just W.
A good answer to this question would…
set the context for all the claims. You might do this by using the priority rule in s.29
of the LRA 2002 to frame the advice. This means that when E takes a disposition of
Consort House from K, E’s title is subject to everything on the Land Register and
any other rights falling within Sch.3.
A’s seven-year legal lease is straightforward. It falls within the category of
unregistered interests that override: Sch.3, para.1. With H’s easement,
comprehensive advice will canvas all the possible legal outcomes given the factual
silence as to the method of creation (expressly or impliedly) that will also determine
if the easement is legal rather than equitable. Even though M’s option has been
granted (by deed), it can only exist as an equitable interest, which she may enforce
if she duly protected it in time via an entry of a notice on the Land Register. If not,
the advice might explore how she may argue it can take effect as an overriding
interest.
W should have protected his beneficial interest on the register by means of a
restriction. This would signal the need to overreach the beneficial interests. Did K’s
disposition of the registered title to Consort House comply with the statutory
requirements for overreaching? If not, this leaves the possibility that W’s beneficial
interest may still have priority, provided he can bring himself within the requirements
of Sch.3, para.2. Here, good advice will forensically work through what that
provision requires, drawing on case law and paying close attention to the facts
about W’s absence.
The response to the alternative rubric, which asks only about W’s position under the
unregistered land law rules, can be disposed of relatively briefly. Failure to
overreach means that the enforceability of W’s beneficial interest turns on the
application of the equitable doctrine of notice: Caunce. This allows speculation –
admittedly constrained by the limited facts - around the impact of W’s absence and
the vagaries of constructive notice: Kingsnorth v Tizard.

3
Poor answers to this question…
failed to see that the central issue is the enforceability of the various parties’ rights
after K disposed of her registered title to E. Sometimes answers confused the
priority principles in registered title (under the Land Registration 2002) with those
that apply where title to land is unregistered (land charges, overreaching and the
doctrine of notice).
Question 2
‘The case for using formalities for land transactions, such as deeds and
contracts, is unanswerable. Equally indisputable is the need for flexibility in
the creation of property rights. What matters is that this flexibility should be
achieved by the operation of clearly demarcated and predictable principles.’
To what extent do you agree with these propositions? Does proprietary
estoppel achieve flexibility in the way described?
General remarks
This question concerns the operation of the equitable doctrine of proprietary
estoppel and its interplay with land law’s insistence on formalities. Chapter 7 in the
module guide introduces the relevant legal ideas.
Law cases, reports and other references the examiners would expect you to use
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; Guest v Guest; Davies v Davies; s.54(2) LPA 1925; and
ss.1 and 2 LP(MP)A 1989.
Common errors
Writing about proprietary estoppel in general and paying insufficient attention to the
specific terms and ideas in each part of the quotation (in particular the claim in the
first proposition about land law’s insistence on formalities) were common errors.
A good answer to this question would…
establish a clear and relevant structure for the essay, one that engages with all
three propositions in the question and both rubrics. Therefore, rather than simply
identifying examples of when and what formalities land law requires, good answers
will go further and explore the different reasons offered for their use. What are the
reasons? Are they convincing? Good answers might explore if the case for them is
unanswerable. In relation to the second proposition, it is worth exploring the
significance of exceptions that property statutes recognise (such as constructive
trusts and parole leases). Does this indicate that it is not always
unreasonable/unfair to prevent property rights from arising informally? When and
why is such informality acceptable? Do you think these exceptions operate in a
clearly demarcated way? Naturally, given the terms of the question, it is necessary
for the answer to consider proprietary estoppel. However, good answers will avoid
simply offering a detailed survey for its own sake. They will direct everything said
about establishing an estoppel claim and the available remedies at the specific
prompts in the quotation. For instance, there is scope for answers to consider the
contested state of thinking about when/if proprietary estoppel can be used to
overcome the absence of compliance with s.2 of the LP (MP)A 1989.
Poor answers to this question…
contained limited coverage (especially of formalities), major inaccuracies and/or
irrelevance (such as extensive material about the inter-relationship between
proprietary estoppel and constructive trusts).

4
 Examiners’ reports 2022

Question 3
(a) Briefly assess the case for recognising the tenancy in common as the
single form of co-ownership in English law.
(b) In 2019 Olive, Maria and Ida, three sisters who lived in the countryside,
bought a small house in London as somewhere to stay when visiting
the city for shopping trips and going to the theatre. Olive contributed
40 per cent of the purchase price, Maria 35 per cent and Ida 25 per
cent. They registered as joint tenants of the legal title and expressly
declared in writing that they held the house in trust for themselves
beneficially ‘as joint tenants’.
Early in 2020 Ida found a teaching job in London and began living in
the house. Olive and Maria did not object because, with the onset of a
pandemic, they decided it was best to isolate in the country. Ida’s
boyfriend, Bart, moved into the house to live with her and help look
after their baby, Andy.
In May 2021 Olive took a job in Moscow and sold her beneficial
interest in the house to Maria.
Last month, Maria who, throughout the pandemic, had struggled to
find work as a concert pianist, wrote to Ida saying she needed to sell
her share in the house. Maria sent the letter by registered post but it
never arrived. Maria telephoned Ida a week later to insist, despite Ida’s
objections, that they sell the house immediately.
Advise about EACH of the following matters:
(i) Maria’s prospects of obtaining a court order for sale of the house;
(ii) how the proceeds of sale would be distributed if the house were sold;
and
(iii) how your advice on (i) would differ if Maria were adjudged bankrupt?
General remarks
Part (a) is more challenging than part (b), which is a relatively standard problem
about severance and co-owners disputing sale. Chapter 5 of the module guide
outlines all the relevant legal material.
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; ss.14 and 15 of TLATA 1996; and s.335A IA 1986.
Common errors
Responding to part (a) with a descriptive survey of the two forms of co-ownership
and/or severance was a common error. This misses the specific proposal part (a) is
asking you to assess. Some responses to part (a) were far too brief (a few
sentences) or too long (over half the answer to both parts of the question).
A good answer to this question would…
critically assess arguments for and/or against abolishing the joint tenancy. This
might start by drawing a clear distinction between the legal and equitable estate.
For the former, as the law reforms in the 1925 property recognise, there is little to
commend using the tenancy in common. The joint tenancy offers a convenient and
efficient way for trustees to hold the legal title as co-owners. How and why? As far

5
as beneficial co-ownership is concerned, good answers might assess the value of
the tenancy in common’s flexibility (undivided shares) and, perhaps, question the
extent to which the parties’ choice does in fact reflect their intention. In questioning
the retention of a choice, the assessment may critically explore such matters as the
merits of survivorship as an inheritance mechanism. It may consider if abolition of
the joint tenancy would reduce the cost and complexity of disputes between co-
owners about which form of beneficial co-ownership exists and about whether
severance has taken place. Alternatively, is it too easy to exaggerate the
significance of such matters – especially if the volume of recent case law is a
reliable guide? In addition, answers may consider if beneficial co-owners’ ability to
make a will is always going to be an effective substitute for the loss of survivorship.
In part (b)(i), I and M each have standing under s.14 TOLATA 1996 to apply to the
court for it to make such order about sale as it sees fit. Which of the considerations
listed in s.15 are relevant to the facts? Can the purpose of the trust change over
time (from city breaks to family home)? Are there facts that suggest the purpose(s)
can still be fulfilled? How relevant is purpose where a trust of land rather than a
trust for sale exists? How important is A’s presence? Where the s.15 factors point in
contrary directions, how would/should the court weigh them when exercising its
discretion about sale? Here, good answers should draw on decided cases to
support the analysis and advice.
With (b)(ii), the three sisters’ written declaration when they acquire the London
house in 2019 is conclusive. Therefore, they hold their beneficial interests as joint
tenants, and their respective percentage contributions are irrelevant. In May 2021,
O’s sale to M is clearly an act upon her share that severs her interest, which means
that M becomes a tenant in common of one third; and M and I will then own two
thirds of the beneficial interest as joint tenants. M’s letter may have severed the joint
tenancy as a notice in writing: s.36(2) LPA 1925. This is, however, dependent on
whether its wording shows the immediate/binding intention required by Harris v
Goddard. Even though the letter did not arrive, it is deemed to be given/served
when it should have arrived in the ordinary course of the service but only if I
correctly addressed the letter and it had not been returned to the registered postal
operator as undelivered (s.196(4) LPA 1925). M’s subsequent telephone call is not
a recognised common law method of severance. In any event, M is entitled to two
thirds of the proceeds of sale and I has one third.
With part (b)(iii), M’s trustee in bankruptcy would proceed under the more
favourable regime in s.335A IA 1986 and, in the absence of exceptional
circumstances, would prevail after, at most, a delay of 12 months. What does case
law tell us about exceptional circumstances? Are there any facts to support an
argument that they exist here?
Poor answers to this question…
these took a variety of forms. Besides highly inaccurate answers, some failed to
address, or completely misunderstood, part (a) Others ignored parts of (b).

6
 Examiners’ reports 2022

Question 4
Andrew was the registered owner of Afon, a private reservoir set in extensive
woodland. There was a disused building in the woods near the edge of the
reservoir, which Andrew left empty many years ago after he upgraded the
reservoir’s pumping system. For many years, Andrew had been looking for
financial backers to redevelop the site as an adventure park.
In 1990 Tanzil discovered the building when on a bird watching trip to Afon.
Over the next few months, Tanzil used the building to photograph wading
birds on the reservoir. Tanzil decided it would be a good idea to renovate the
building and live there. In 1992 Tanzil took to staying there overnight at
weekends when working late on turning the building into a home. In 1994 he
and his partner, Linda, moved in. Linda cleared some of the trees and shrubs
to create a garden and she rebuilt the perimeter wall around the building to
keep her pigs from wandering off into the woods and eating harmful plants.
Andrew was aware that Tanzil and Linda had moved into the building but he
raised no objection. Tanzil continued to live in the building until his death in
2000, leaving all his property by will to Linda.
In early 2022, Andrew finally gave up his search for finance to allow him to
redevelop Afon. He sold the registered title of the reservoir to Sally. Acting on
legal advice, Sally wrote to Linda stating that she was content for her to
remain in the property for the ‘time being’.
(a) Advise Linda.
(b) How, if at all, would your advice differ if Andrew had expressly told
Linda that he did not mind her and her boyfriend using the building
while he was seeking finance?
(c) How, if at all, would your advice differ if title to Afon was unregistered
throughout?
General remarks
This problem question on adverse possession relates to the material introduced in
Chapter 11 of the module guide.
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; Hounslow v Minchinton; Boosey v Davies; Purbrick v Hackney LBC;
Colin Dawson Windows Ltd v Borough Council of King's Lynn; BP Properties v
Buckler; Smith v Molyneaux; ss.15 and 17 LA 1980; ss.96 and 97 and Sch.6 and
Sch.12, para.18 of the LRA 2002.
Common errors
Not taking enough care in stating and applying the legal tests to establish factual
possession and intention. Omitting clear advice about how and when L completes
the relevant limitation period and which legal process operates to determine her
claim. Overlooking the legal effect of Sally’s 2022 letter and wrongly seeing scope
for advice on acknowledgment in part (b) were common errors.
A good answer to this question would…
determine when and if adverse possession might have begun. The onset requires
the elements of a claim (factual possession; intention and adversity) to coincide.
The timing of this is open to argument. Before reaching a conclusion on the point,
good answers might consider the events by making appropriate use of the legal
tests and decided cases. For L, this might depend on her being eligible to rely on
T’s actions. Even if T formed the intention in 1990, when did his factual possession
(exclusive physical control) arise? Was it only when his building work starts, even

7
though his stay on the property during that time is limited? By rebuilding the wall, is
L’s actions akin to enclosure? Is this the moment at which the requisite degree of
factual possession and intention (as confirmed in Pye) comes into existence? Does
it matter that L builds the wall to keep the pigs from straying? Was the possession
adverse? Do either A’s failure to object, or his plans for the use of the land in the
future, destroy the adverse nature of L’s possession? If, since 1995, L has been
adversely possessing the plot in her own right (and jointly with T), then she does not
need to rely on the terms of T’s will. Otherwise, if, she lacks the necessary intent in
her own right, then T’s will means she can claim the benefit of his period of adverse
possession.
Good answers will consider which of the two distinct processes for giving effect to
adverse possession in registered land apply on these facts. If, as seems likely,
adverse possession did not begin until 1995, this rules out the more favourable pre-
2002 Act scheme because L cannot show she has completed the limitation period
(12 years) before October 2003. Therefore, L will need advice about relevant
aspects of the operation of Sch.6, para.5 of the LRA 2002. Has A’s unilateral
gratuitous licence stopped the clock ticking? This opens the door to critical advice
as to whether (BP Properties v Buckler; as applied by the PC in Smith v Molyneux
(2016)) is correct. This also raises the question of whether L can still apply to the
Land Registry under the LRA 2002.
Parts (b) and (c) can be disposed of quite swiftly. Might A’s conversation with L form
the basis for implying a licence (even if one can no longer arise as a matter of law:
LA 1980, Sch.1, para.8(4))? With part (c), there is simply a need to indicate the
combined effect of ss.15 and 17 of the LA 1980.
Poor answers to this question…
contained inadequate knowledge of the principles and concepts of adverse
possession and/or lacked evidence of basic problem-solving skills. Some poor
answers misdiagnosed the question (e.g. easements).
Question 5
Clarrie is the registered proprietor of Grange Farm. Grange Farm includes a
house, cottage, several barns and a large orchard. Clarrie keeps ducks in the
orchard, and sells their eggs and fruit in the farm shop she has set up in one
of the barns. There is a worn track running through the orchard which Clarrie
uses once a week to deliver her goat’s milk to customers who live in nearby
Darrington.
In May 2019 Clarrie leased the cottage at Grange Farm to her friend, Susan,
for two years. Before they signed the lease, Clarrie told Susan that she was
happy for her to use the shortcut through the orchard to Darrington station. In
August 2019 Susan was desperate to find somewhere safe to keep her motor
home after it had been vandalised. Clarrie offered Susan the use of one of the
empty barns at Grange Farm to give her peace of mind that the motor home
would be safe. Clarrie had a key cut for the barn and gave it to Susan. Susan
was so touched she invited Clarrie to make use of the hot tub in the cottage
garden whenever she wanted. In January 2020 Clarrie asked if Susan minded
hanging a sign on the side of the cottage wall nearest the road to advertise
Clarrie’s farm shop at Grange Farm. Susan readily agreed.
In 2021 Clarrie granted Susan a five-year lease of the cottage before she sold
the barns and the paddock to her neighbour, Tom. Tom has asked Susan to
remove her mobile home from the barn, saying he needs it to house his
sausage-making machinery. He has also refused Susan’s request to remove a
piggery that he has built in such a way that it prevents her from using the

8
 Examiners’ reports 2022

shortcut across the paddock to Darrington. Angered by Tom’s refusal, Susan

has now demanded that Tom take down the sign for the farm shop on her
cottage wall and made it clear that he is not welcome to use the hot tub.
Advise Susan.
General remarks
This problem concerns determining whether the rights C and T want to claim can be
easements, if and how they were created, and questions of priority. Chapter 8 of the
module guide introduces the applicable legal principles.
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; Pwllbach Colliery Co Ltd v
Woodman; P&S Platt Ltd v Crouch; Wheeldon v Burrows; Ward v Kirkland; Wheeler
v JJ Saunders Ltd; Wood v Waddington; Re Webb's Lease; s.62 LPA 1925; Law
Commission Making land work: easements, covenants and profits à prendre (Law
Com No 327, 2011).
Common errors
One or more of the following were common errors: taking too little care in stating
and applying the contentious aspects of the characteristics of easements to the
facts (especially the rights to park the motor home and use the hot tub); mixing up
reservation and grant; and failing to identify which transaction might serve as the
basis of a claim for implied creation.
A good answer to this question would…
settle on a workable structure. This might involve taking each of the four rights
(park, advertise, use the shortcut and hot tub) in turn and establishing, first, if the
law accepts they can be valid easements. Second, S needs advice about how and
when they are impliedly created as easements. Finally, the advice should determine
the priority of rights when T becomes the owner of the land to which they relate.
A good answer would find ways to target the advice about eligibility and implied
creation to deal with the most contentious legal issues and facts that are particular to
each claim. This approach has the added benefit of reducing unnecessary duplication
in the advice. Without completely ignoring the shortcut and the right to hang an
advertising sign, it makes sense to give greater attention to advice about the right to
park and the hot tub. With the hot tub, is this type of recreational right between
neighbours distinguishable from Regency Villas? Would the application of the rival
approaches to the ouster principle in Batchelor v Marlow and Lord Scott’s judgment in
Moncrieff make any difference to the outcome of your advice on S using the empty
barn? In addition, might S having a (spare?) key to the barn matter?
When dealing with each claim, good answers may choose to vary the emphasis on the
available methods of implied creation. The facts may guide the choice. Similarly, it may
be sensible to rule out methods that cannot apply. These may be effective and efficient
approaches to advice giving. It is important to take care in: (a) identifying the relevant
sale (lease/freehold) into which the rights may be implied; and (b) distinguishing
between grant/reservation. Was the shortcut impliedly granted to S as part of the first
lease of the cottage in 2019 by virtue of the rule in Wheeldon (or s. 62 of the LPA 1925
if prior diversity is not required: Wood v Warrington)? If S’s right to park/store is
capable of being an easement, then how and when was it created in relation to the first
lease? How might its status change with the grant of the second lease in 2021? As for
the implied reservation of the right to hang the sign (and the use of the cottage hot
tub), C’s claim will not fall within the narrow confines of the idea of necessity and she
may struggle to prove common intention: Re Webb’s Lease. Finally, answers should

9
consider the priority issues that arise when S sells the paddock and barn to T and, in
particular, the applicability of Sch.3, para.3 of the LRA 2002.
Poor answers to this question…
provided limited and/or superficial advice about the central issues, or contained very
little relevant and accurate substantive legal content.
Student extract
From the facts of the case we note that Clarrie, who is the registered
proprietor of Grange Farm, has leased to her friend Susan the cottage at
Grange Farm, and along with that granted her certain rights of use, namely
the right to use the track through the orchid, and the barn to store her motor
home. Moreover Susan has also permitted her to use the hot tub at the
cottage and to hand a sign advertising the farm shop. Clarrie has then
Granted Susan a five year lease and sold the property to Tom, and after a
fallout both of them have revoked the given rights of use use from each other.
We need to advise Susan under the law of Easements if any of the rights
granted to her by Clarrie can be claimed from Tom and whether she is
obligated to provide Tom the same rights that she gave Clarrie.
We note that easements are proprietary rights of use over someone else's
title, and to see if the easements can be binding the first aspect is to prove if
the rights are capable of becoming an easement, which can be proven if the
criteria set out in the Re Ellenborough criteria is met which is that there has to
be a Dominant Tenement (DT) which is the benefited land, the owner of
which uses the right; and a Servient Tenement (ST), the the burdened land,
the owner of which has to let the right be used without interference. the DT
and ST have to be owned by two separate people, and the right has to
benefit the DT, where it is either a general benefit which increases the
utilization and value of land, a commercial benefit which benefits the
business operating on the land or a recreational benefit, which is generally
not granted but is only granted when the user and use is defined, and the DT
and ST have to ne proximate to each other, the grantor and grantee are
capable and the right is certain.
In our case, 4 rights have been granted. Clarrie has granted Susan the right
of way to use the track on the orchard, and to park her motor home in the
barn which is right of parking, so Grange farm which is owned by Clarrie will
be the ST and the cottage will be the DT, as they are owned by two separate
people. Furthermore, they are proximate to each other, and both the rights
are a general benefit, and will increase Susan's utilization of land as she will
get a shortcut to the station and is at mental ease of having her motor
parked. Both are capable and both the grants are defined therefore these
rights will be capable to become an easement. However, in the case of
parking, we note that the right is conferring an occupational control on
Clarrie's land, so the right will only be capable if it does not take away the
reasonable use of the land (Batchelor case), or if it does not take away the
majority control of the owner (Morcrief test). these were the tests use by the
court to determine occupational control, and even though the morcrief case
came after Batchelor, the courts prefer the Batchelor case and apply the
reasonable use test. we note that Grange Farm is a large land with multiple
barns and so if Susan parks her motor, the reasonable use of the land will not
be affected and the right will be valid.
Moreover Susan has granted Clarrie the right to use the hot tub which is a
recreational benefit, and the right to advertise her shop which is the
commercial benefit, and here the cottage will be the ST and Grange Farm

10
 Examiners’ reports 2022

which is owned by Carrie will be the DT. As the shop is on the Farm, the
commercial benefit will be valid, and assuming that the hot tub is Susan's
private and nobody apart from her uses it, then the recreational benefit will
also be valid as the use and user is defined.
Comments on extract
Overall: This extract is part of an answer that achieved a low 2:2. The advice in the
extract covers issues relating to the eligibility of the various rights to be easements.
Relevance: There is great scope to improve the extract’s relevance. The first
paragraph wastes time, pointlessly retelling parts of the scenario. Would it be better
to open with an introduction? For instance, this might briefly outline the steps in the
advice to S. Doing this establishes a structure and signals the direction the advice is
going to take. The Re Ellenborough guidelines identified in the second paragraph
are definitely relevant. However, introducing them all at once, and in the abstract, is
an unproductive way of giving relevant advice on the specific issues and facts. A far
better technique would be to refer to each of them individually and consider how
each applies to the facts in a fully reasoned way. The third paragraph tries to do this
but needs greater care. How might you improve the relevance and depth of this part
of the advice? Moreover, might it be better to consider and dispose of all the issues
(on eligibility, implied creation, priority) for each of the claims separately? Ultimately,
this is a decision about the structure of the advice. There is no single or right
answer. What matters most is to make your chosen structure work, not least in
maximising the relevance of your advice, and minimising duplication.
Accuracy of information and use of authorities: Much of the legal information,
although accurate, is basic and superficial. This is especially true in the final
paragraph of the extract. Its treatment of the claims to use the hot tub and hang the
advertising sign is cursory and depends upon assertion. It lacks detail about the law
(including authorities) and reasoned application. The extract mentions appropriate
cases relating S’s claim to park her mobile home it. However, does it explain the
approach English law currently takes to the ouster principle carefully and accurately
enough? Does the part of the advice about how the law applies to the facts seem
clear and sensible? The extract is also misleading when it repeatedly asserts that
the rights have been ‘granted’. For one thing, this assumes one of the key questions
that the advice should address.
Clarity and presentation: Much of extract says is reasonably clear, although there
is scope for greater care with the use of English. It does not seem as if the extract is
the product of a considered plan. Using italic font for the names of parties in a case
is usual.
Question 6
‘The law’s traditional methods of protecting mortgagors, especially those
methods originating in equity, are largely redundant when it comes to
mortgages used to buy a home. Such mortgagors are further disadvantaged
by the ease with which a mortgagee may obtain possession and sale.’
To what extent do you agree with these views?
General remarks
Overall, the responses to this challenging question concerning key parts of the law
of mortgages were at best of mediocre quality. Chapter 10 introduces the relevant
legal material.
Law cases, reports and other references the examiners would expect you to use
Biggs v Hoddinott; Noakes v Rice; Kreglinger v New Patagonia Meat & Cold
Storage Co Ltd; Samuel v Jarrah Timber; Jones v Morgan; Cityland and Property

11
(Holdings Ltd) v Dabrah; Multiservice Bookbinding v Marden; Esso Petroleum Co
Ltd v Harper's Garage Esso; Paragon Finance v Nash; Cheltenham & Gloucester
BS v Norgan; Bank of Scotland v Zinda; Palk v Mortgage Service Funding;
Cheltenham & Gloucester plc v Krausz; Cuckmere Brick Co Ltd v Mutual Finance
Ltd; Standard Chartered Bank Ltd v Walker; Ropaigealach v Barclays Bank plc;
Horsham Properties Group Ltd v Clark; s.36 of the Administration of Justice Act
1970; ss.101 and 103 LPA 1925.
Common errors
(Disregarding the need for an assessment of the specific ideas mentioned in the
quotation.) In particular, far too many answers totally ignored the question’s
reference to mortgages about buying a home.
A good answer to this question would…
start by setting out what is to be discussed and how. Good answers should find little
difficulty in highlighting the commercial context in much of the case law in which the
traditional equitable principles (clogs and fetters on the equity of redemption,
unconscionability, restraint of trade) were developed. They were principally
business parties and these decisions about the validity of mortgage terms raise
fundamental questions about the nature of the mortgage, protecting the mortgagor’s
right to get the property back unencumbered and freedom of contract. How does
this body of judicial decisions from a different era and context have any relevance to
mortgages used by house buyers today? Even when it comes to legislative and
equitable controls on interest rates, which have greater relevance to homeowners’
mortgages, do they give mortgagors more than limited protection?
The quotation invites discussion of the mortgagees’ right to possession at common
law and equity (Four Maids v Dudley Marshall and Quennell v Maltby). What
matters is that you assess the relevant legal principles through the question’s lens.
The claims in the quotation may be accepted or refuted, in part or in full. This
applies equally to your assessment of how the courts use its broadly based
discretion to delay or stay possession under s.36 AJA. Does it always operate to
the advantage of the mortgagor? Is allowing the mortgagor a lengthy ‘reasonable
period’ entirely to the mortgagor’s advantage if it defaults a second time? Can the
mortgagee sidestep s.36 too easily: Ropaigealach and Horsham Properties Group
Ltd? There is also scope for good answers to acknowledge the role of and reliance
on ‘soft law’ measures, such as the Pre-action Protocol, in protecting the mortgage
by controlling the ability for the commencement of possession proceedings.
When it comes to sale, how easy it is for mortgagees to exercise their inherent
right? Do the 1925 procedural safeguards (ss.101 and 103 of LPA 1925) that pre-
date the incidence of home acquisition, make recourse to sale too easy and thereby
disadvantage mortgagors? In a similar vein, good answers might test the case law
on the mortgagees’ ability to determine the method of sale, its timing and the price it
must achieve against the claims in the quotation. By contrast, is it arguable that
s.91(2) of the LPA 1925 advantages the mortgagor faced with an oppressive delay
(Palk)? But will the statutory discretion always advantage the mortgagor more than
the mortgagee?
Poor answers to this question…
offered a descriptive survey about some relevant parts of the topic identified in the
question – sometimes adding in irrelevance (on such matters as the creation/nature
of mortgages and undue influence).
Student extract
A mortgage contract is a secuirty for loan. The lender of the money is called
the mortgagee and the borrower is called the mortgagor. A mortgage contract
with creating personal interests between the parties also contains proprietary

12
 Examiners’ reports 2022

obligations. Hence, the mortgagor holds value rights such as equity of

redemption for the mortgagor. On the other hand, mortgagee owns the rights
such as foreclosure and recovery of the amount lent to the mortgagor with
interest. To answer this question, one needs to discuss these rights
possessed by the mortgagee and the mortgagor in detail to conclude whether
law provides sufficient protection to the mortgagor.
Beginning with mortgagee's right to possess the land. It is argued that the
mortgagee is in a position to possess the land the very moment the mortgage
contract has been formed (Four Maids v Dudley Marshall). However, this is
unlikely that the mortgagee would make use of this right as by making use of
the property he is bound to compensate the mortgagor for the generateabale
income from the land. It should be noted that the mortgagor can use section
36 of Administration of Justice Act 1970 to appeal against the possession of
a residential property by the mortgagee. Thus, if the courts find it convincing
that the mortgagor can pay all the loan within the specified time, they would
turn down mortgagee's application for the possession of the residential
property (First national bank v Syed). According to National Provincial
building Society v Lloyd 1996 the mortgagor needs to present a realistic plan
for the payment of the loan and the time period provided for the plan should
be reasonable (Norgan 1996). Moreover, according to Cheltenham, the delay
of the payment plan should not exceed the existing mortgage time period.
Secondly, if the mortgagor defaults on the payment of loan, he can exercise
his common law right as per Ropalgealach v Barclays Bank to sell the
property to recover the debt and interest payment. Thus the power of sale
arises if the mortgagor misses one monthly installment (Payne v Cardiff
RDC) or the legal date of redemption has passed. Similarly, the power of sale
becomes exercisebale if the mortgagor misses two monthly installments or
the mortgagor has been given a notice after legal date of redemption has
elapsed and the mortgagor did not pay the debt after 3 months of serving the
legal notice. Once, both these requirements have been met, the mortgagee
has a right to sell the property.
However, it is argued that the mortgagee is under a duty to sell the property
at bes price reasonably obtainable (Kennedy v De Trafford 1897).Similarly,
as per Farers mortagagee should not sell the property to satisfy his personal
interests In Standanrd Charted Bank v Walker, it was ruled that the
mortgagee should take reasonable steps such as advertisement and auction
sales to sell the property at the market rate. Likewise, the mortgagee should
not sell the property to somone who is personally known to him (Bishop v
Blake). According to Tse Kwongham v Wong, the courts can dismiss sale if
the proceedings have not been carried out properly.
It is argued that the mortgagee can sell the property even before the power of
sale has arisen but in this scenario the third party (purchaser) would only be
getting mortgagee's rights on the land and not the property.
Comments on extract
Overall: This extract forms part of a lengthy and repetitive response. Overall, the
answer achieved a low third-class standard.
Relevance: The extract fails to respond appropriately to the question. In fact, it
does not appear to recognise or understand what it asks, particularly the
significance of the quotation’s reference to ‘mortgages used to buy a home’. The
opening paragraph is a poor way to start an answer to this question. It needlessly
explains basic concepts. Do you (ever) need to include such explanations when
answering a question? The first paragraph also refers to a part of mortgage law

13
(foreclosure) that is beyond the question’s scope, while omitting any mention of
relevant parts of the topic the essay goes on to consider. Failing to include a proper
introduction amounts to a wasted opportunity. What might it have contained? At
best, the rest of the extract comprises nothing more than a descriptive survey of
possession and sale. (The rest of the answer maintained this overreliance on
narrative.) That said, the extract contains a great deal of legal information that is
potentially relevant. How might you make better use of this material to build
arguments about the terms and ideas in the quotation?
Accuracy of information and use of authorities: Much of the legal information,
although superficial and not expressed that carefully, is broadly accurate. The
extract cites relevant case law and statutory provisions about possession and sale
but, as already mentioned, it fails to capitalise on this material.
Clarity and presentation: Overall, the use of English is satisfactory and the
meaning clear. The presentation is acceptable, although there is scope for greater
care to eliminate typographical errors and improve the consistency in the standard
of citation. Using italic font for the names of parties in a case is preferable.
Question 7
Jet owned Gourmets, a drive-through fast food restaurant. In 2016 Jet needed
to raise money to pay for the refurbishment of Gourmets’ kitchen after it
failed to meet the local authority’s hygiene regulations. In May 2016 Jet
therefore sold part of Gourmets’ car park to Hattie, who wanted to build a
coffee shop on the plot. The plot was only accessible from the main road by
using 50 metres of the tarmac drive belonging to Gourmets.
As part of the sale, Hattie covenanted ‘with Jet, his successors in title to the
retained land, and for the benefit of owners of the neighbouring land’ that she
would:
(a) pay half the annual cost of repairing and maintaining the 50 metres of
Gourmets’ driveway leading from the plot of land being sold to the
main road;
(b) not let the external decoration of any buildings on the plot deteriorate;
and
(c) only use the plot for the sale of non-alcoholic beverages.
In 2017 Hattie opened her newly built coffee shop, Expresso, and she paid
half the cost of repairing potholes in the 50-metre strip of the driveway she
shares with Gourmets. In 2018 Jet sold Gourmets to Candice. A month later,
Hattie sold Expresso to Lucy and in 2019 Lucy sold it to Dirk.
Dirk plans to turn Expresso into an American style diner. He has successfully
received permission from the relevant licensing authority to sell alcohol
during the daytime. Candice objects to Dirk’s plans, as does Keith, the owner
of The Blue Parrot, a nearby public house. The paint on Expresso’s doors and
window is peeling off and Dirk has ignored Candice’s most recent request to
pay for half the cost of resurfacing the shared driveway.
Discuss.
General remarks
This question, tackled with differing degrees of success, raises typical issues
around the operation of freehold covenants. Chapter 9 in the module guide covers
the relevant legal material.

14
 Examiners’ reports 2022

Law cases, reports and other references the examiners would expect you to use
Tulk v Moxhay; Austerberry v Oldham Corporation; Rhone v Stephens; Haywood v
Brunswick PBS; P&A Swift Investments v Combined English Stores Group; Smith
and Snipes Hall Farm Ltd v River Douglas Catchment Board; Federated Homes v
Mill Lodge Properties; Roake v Chadha; Crest Nicholson v McAllister; Newton
Abbot Co-operative Society Ltd v Williamson and Treadgold Ltd; ss.56, 78, 79 and
136 of the LPA 1925; and s 1 of the Contract (Rights of Third Parties) Act 1999.
Common errors
Dealing with passing of benefit but not burden, or vice versa was a common error.
Misunderstanding when and how the mutual benefit and burden principle operates.
Identifying relevant legal principles without exploring how they may or may not
apply to the facts. Omitting consideration of whether or not K can rely on clause (c).
A good answer to this question would…
recognise that D, a successor in title to the burdened land, has breached the three
covenants. The advice might then consider if C has a cause of action to enforce any
of them against D; before turning to discuss whether K can enforce covenant (c). A
good discussion tests if and how both the benefit and burden of each of the three
covenants moved to C and D as successors in title to the original parties. One good
way to start is by identifying that, at common law, the burden of a covenant cannot
pass from H as covenantor (Rhone v Stephens). However, it can pass in equity but
only in respect of restrictive covenants. This gives context for giving advice about
the status of the three obligations. Which of the three covenants restrict the use of
the plot of land rather than impose positive obligations? What is the test? As this is
a matter of substance (not form) – what is the nature of the obligation imposed by
covenant (c)? This may end the discussion of the two positive covenants, although
with covenant (a) it is worth exploring its enforceability via the equitable principle of
mutual benefit and burden.
Good answers should then take each of the equitable ideas developed since Tulk in
turn and apply them. If all are satisfied, then D will be bound by the burden of the
restrictive covenant (c). The advice should make as much use of the facts as
possible, including playing with the silence about whether a notice had been
entered at the Land Registry. There is a need to discuss the possibility that the
claimant has the benefit. How might the benefit of covenant (c) have passed from J
to C? There is a range of possibilities at law and in equity. However, the central
discussion should engage with how it may have happened in equity – assignment
and annexation. Why not via a building scheme? When it comes to equitable
assignment, the covenant touches and concerns the relevant land, and the
benefited land is sufficiently identified in the covenant. However, there is nothing to
suggest that it was assigned in 2018 when J sold Gourmets to C. This raises the
potential for advice about if/how annexation may have taken place in 2016 when
covenant (c) was agreed. Does its wording suggest express annexation occurred?
Is it easier for C to establish that annexation occurred automatically? What are the
preconditions for the application of s.78 LPA 1925 (Crest Nicholson); are they
satisfied here? Finally, answers should also discuss if K, as the owner of a
neighbouring property, can bring a claim, if not by virtue of s.56 of the LPA 1925
(Amsprop Trading Ltd v Harris Distribution Ltd), then by virtue of the Contracts
(Rights of Third Parties) Act 1999.
Poor answers to this question…
went little further than discussing (sometimes inaccurately) the distinction between
positive and negative covenants.

15
Question 8
‘Since the landmark decision in Street v Mountford (1985) the substantive
characteristics for the existence of a lease are indisputable. However, as a
number of subsequent developments clearly show, they are not without
controversy, and their application has sometimes had to depend on judicial
flexibility.’
Discuss.
General remarks
There were some strong answers to this question. Chapter 6 of the module guide
introduces the law the on the characteristics of the leasehold estate.
Law cases, reports and other references the examiners would expect you to use
Street v Mountford; Somma v Hazlehurst; Bruton v London and Quadrant Housing
Trust; Antonaides v Villiers; AG Securities v Vaughan; Aslan v Murphy; Mikeover v
Brady; Stribling v Wickham; Clear Channel UK Ltd v Manchester City Council;
National Car Parks Ltd v Trinity Development Co. (Banbury) Ltd; Lace v Chantler;
Ashburn Anstalt v Arnold; Canadian Imperial Bank v Bello; Prudential Assurance Co
Ltd v London Residuary Body; Berrisford v Mexfield Housing Co-operative Ltd;
Southward Housing Co-Operative Ltd v Walker; Gilpin v Legg; ss.54(2) and 149(6)
LPA 1925.
Common errors
Failing to engage with the ideas and terms of the quotation, either ignoring its
precise terms or changing them was a common error. This is a major mistake. It will
affect the credit an answer receives. Some answers concentrated solely on
exclusive possession, or the legal position before (rather than since) Street.
A good answer to this question would…
establish a relevant direction for the discussion from the outset and maintain it
throughout. One way of doing this is by making use of key terms and ideas in the
quotation to shape and direct the argument. This is also an appropriate way to
identify the substantive requirements for a lease that Street sets out – exclusive
possession, certainty of duration (and rent). What do subsequent developments
suggest about whether each of them is ‘indisputable’ and/or ‘without controversy’? It
is open for answers to agree and/or disagree with the quotation and its claims about
judicial flexibility. What matters is that you find ways to use the ideas to assess
post-Street developments. Good answers will show an understanding of the judicial
and academic thinking to do this.
What have subsequent developments suggested about the status of rent? Was
Lord Templeman’s approach to exclusive possession novel? What does it tell us
about the role of intention, labels and substance? Have the courts had to be flexible
when applying the lodger/tenant distinction to cases of multi-occupation. How have
subsequent cases developed our understanding of shams/pretences and their
potential impact in determining if a lease exists? Is there scope to argue that the
test for exclusive possession applies differently where the parties are commercial
entities?
Lord Templeman mentioned the need for certainty of term but it was not a live issue
in the dispute. Since then, however, it has received significant scrutiny. There is
ample judicial (Prudential, Berrisford, and Southward)) and scholarly consideration
for good answers to be able to engage with the contentions that it is controversial
and come to depend upon judicial flexibility. Good answers will also do well to find
relevant ways of considering how another subsequent development, Bruton’s non-
proprietary lease, sits with the ruling in Street.

16
 Examiners’ reports 2022

Poor answers to this question…

took a number of forms. They included answers that contained: very limited and/or
superficial legal material; a great deal of irrelevance (about such things as the law
before Street, formalities, licences and forfeiture); little more than an extremely
detailed description of the facts and context of Street.

17