Pq Compiled

Adverse Possession 2021
Western County Council owns the registered freehold title to Downtown Manor, which it occupies
until 1998 before it moves its administrative headquarters to a new site. Downtown Manor is about
four hectares of land, comprising a large building, a cottage and a garage. Western Country Council
now wants to sell Downtown Manor to raise capital funds. When Christopher, their surveyor, visits
the property he discovers the following:
(a) Jaclyn is occupying the cottage, and claims to be a squatter. She tells Christopher that she
broke the front lock of the front door in January 2002, and then moved in. She immediately
mended the roof and installed a new heating system. She admits to Christopher that
although she has lived in the cottage ever since, she fully expects that one day Western
County Council may ask her to leave, or pay rent.
(b) Terry is making use of the garage. Terry shows Christopher a copy of a contract for sale
(dated 2000) by which Western County Council agreed to sell to him. Terry also produces a
receipt of the purchase price.
(c) the boundary fence between Downtown Manor and the neighbouring Willow Farm appears
to be in a different place from that shown on the plans Western County Council gives
Christopher. Consequently, a small part of land that belongs to Downtown Manor is on the
wrong side of the fence. Christopher speaks to Pam, the owner of Willow Farm. She explains
how, in 2000 she put the fence up in place of a fire- damaged hedge, erecting it where her
lawyer told her the boundary lay between Willow Farm and Downtown Manor.
Advise Western Country Council as to whether Jaclyn, Terry or Pam can make a successful claim
to be registered as proprietors of the parts of Downtown Manor they occupy.
Indicate briefly how, if at all, your advice about Jaclyn’s claim would be different if her legal
position was governed by (i) unregistered land law rules; and (ii) the Land Registration Act 1925.
Suggested answer
 The law governing adverse possession will be the Land Registration Act 2002.
 Two requirements to fulfil before a claim under adverse possession can be made:
(i) Factual/Physical possession
(ii) Intention to possess
1) Physical possession
The law's requirements in factual possession is represented in the following judgement of Slade J in
Powell v McFarlane, also accepted by the House of Lords in the vital case Pye (JA) (Oxford) Ltd v
Graham: ‘Factual possession signifies physical control'...'single and exclusive possession'...'and the
alleged possessor must have been dealing with the land as an occupying owner might have been
expected to deal with it and no one else has done so'
Grazing cows and storing timber: Treloar v Nute [1976]
Shooting over marsh land: Red House Farms v Catchpole [1977]
Puvanal Sri 1
- Purbrick v Hackney- successful adverse possessor cleared a derelict shed, erected a new roof and
fitted a makeshift door and fixed a chain.
2) Intention to possess
-The claimant has to show that he has an intention to possess the land to the exclusion of all others
and that he was in physical possession of the land; Pye v Graham.
-Powell v McFarlene- intention is not the traditional legal sense of ‘mens rea’ but evidence that the
adverse possessor for whatever reason had the intention to possess the land and put it to his own
use, whether or not he also knew that some other person had a claim or right to the land.
-Buckinghamshire County Council v Moran- ‘there must not be an intention to own or even an
intention to acquire ownership but an intention to possess’. This was approved by HOL in J A Pye
(Oxford) Ltd v Graham.
-In Pye v Graham, the HOL held that ‘necessary intent is an intention to possess (not to own) and an
intention to exclude all others if he could’.
a)Jaclyn
-Does she have factual/physical possession coupled with an intention to possess?
(i)Factual/Physical possession
(ii)Intention to possess
Does the claimant’s expectation that the owner may ask the claimant to leave the land some day
defeat intention to possess?
-The intention to possess can still exist even if the claimant would have been prepared to accept the
permission to use the land had it been offered, (Lambeth LBC v Blackburn) or even would have
quitted possession if required (J Alston & Sons Ltd v BOCM Pauls Ltd)
c/f Clowes Developments v Walters (2005) – a belief that the land is currently possessed with the
permission of the paper owner is fatal.
-Acknowledgment that the land belongs to another will prevent intention to possess (as you believe
that you are there with permission).
-Awareness is fine and intention to possess can exist.
Puvanal Sri 2
Registration
Schedule 6 LRA 2002.
Jaclyn’s position would be governed by Schedule 6 of the 2002 Act.
Schedule 6 paragraph 1 - provides that a person may apply to the Registrar to be registered as the
proprietor of a registered estate in land if he has been in adverse possession of the estate for 10
years ending on the date of the application.
Baxter v Mannion- The adverse possession continues on the date of making the application.
Crosdil v Hodder- If the adverse posessor quits the land he /she cannot make an application despite
completing 10 years.
When an application to be registered as proprietor is made by Jaclyn

The local council has three choices.
1) They may consent- but rare. Exception: Balevents Ltd v Sartori - local council loss the land to an
adverse possessor.
2) They may object to it – if objection is raised the registration cannot be finalised until the objection
is dealt with. (challenge the factual basis of AP)
3) Serve a counter notice (with or without objection). - The registrar will deal with the application
under Schedule 6 para 5 LRA 2002 and even if factual possession is proved, the AP’sor cannot be
entered as the new registered proprietor unless any one of the 3 exceptional grounds under Sch 6
para 5 discussed above is satisfied.
 She would be registered as proprietor consequent to her application if she is able to satisfy
one the 3 exceptions under Schedule 6 para 5 of the LRA 2002.
- 1) Estoppel, unconscionability, ought to be registered.

-Jaclyn could seek to apply under Sch 6 para 5(2)(a) & (b) on the basis of estoppel whereby she must
show that she has detrimentally relied on some assurance by the registered proprietor where it would
be unconscionable for the assurance to be withdrawn. ‘Acquiescence’ is both express and implied.
Example:
 If the council representatives visited the plot from time to time-aware of Jaclyn’s action - but
raised no objection and
 Jaclyn had spent money and time installing the electricity and doing small repair jobs in the
house. (detrimental reliance)

(Check if other exceptions may apply)- 1)some other reason to be registered?

- 2)boundary dispute?
-If Jaclyn fails to show that she falls within the 3 exceptions (which is likely), then the local council
may evict Jaclyn simply by proving title. If Jaclyn is not evicted during the 2 year period, she may
reapply for registration and must be registered as the proprietor.
Puvanal Sri 3
b) Terry
Registration
- Schedule 6 paragraph 1 LRA 2002 – He would apply to be registered as proprietor of the garage.
- He would argue the second exception pursuant to Sch 6 para 5(3) LRA 2002: The squatter is for
some other reason entitled to be registered as the proprietor of the estate.
Crosdil v Hodder (2011) – examples are instances where the claimant or applicant can obtain remedy
without having to rely on adverse possession.
c) Pam
Registration
- Schedule 6 paragraph 1 LRA 2002 –She would apply to be registered as proprietor of the garage.
-She would argue the third exception under Sch 6 para 5(4): the boundary exception
Conditions:
(i) the land of the application is adjacent to that to which the claim relates
(ii) the exact boundary has not been determined
(iii)the land to which the application relates has been registered for more than one year.
(iv)’for at least ten years of the period of adverse possession ending on the date of application, the
applicant reasonably believed that the land to which the application relates belonged to him’.
Puvanal Sri 4
-Zarb v Parry (2011) - COA held: applicants’ belief was reasonable and so they succeeded in
establishing title under the boundary exception. (Arden LJ in Zarb v Parry- the belief must persist for
10 years up to the moment of application). This view was adopted in IAM Group v Chowdrey (2012)
With regard to Jaclyn:
If unregistered land rules apply:

-Section 17 Limitation Act 1980- paper owner’s right to sue and title is extinguished upon 12 years of
being in possession and squatter takes the land subject to all burden on the land whether registered
under LCA 1972 or not.
If the 1925 Act registered land rules apply:

>The same limitation period of 12 years apply. A person who has completed 12 years before LRA
2002 came into force is entitled to be registered as proprietor of the land. (Schedule 12 para 18). The
former owner’s title is extinguished [Crosdil v Hodder(2011)]
>pending such registration the land is held on trust by the registered proprietor for the adverse
possessor (Section 75 LRA 1925).
Puvanal Sri 5
Jim was the registered owner of Blackacre, where he carried on a vehicle-repair business. Adjoining
Blackacre there was a plot of land on which there was a terrace of uninhibited houses awaiting
demolition. The local council was the registered owner of this plot and it planned to develop the plot
by building a small block of flats. In the meantime it had boarded up the houses. In 1992 Jim
removed the boards from the house closest to Blackacre and began using the house for storage
purposes. He fixed a steel door to which he attached a padlock and in 1993 he installed electricity,
which enabled him to so small repair jobs in the house. The council’s representative visited the plot
from time to time and was aware of what Jim was doing, but he raised no objection. Early in 2005
the council wrote to Jim informing him that it wished to redevelop the plot and demanding that he
leave.
Advise Jim.
How, if at all, would your advice differ if the plot had been unregistered land?
Answer pointers
>
-In order to have a successful claim to adverse possession certain elements must be satisfied.
1) Intention to possess
-Jim has to show that he has an intention to possess the land to the exclusion of all others and that
he was in physical possession of the land; Pye v Graham.
-Powell v McFarlene- intention is not the traditional legal sense of ‘mens rea’ but evidence that the
adverse possessor for whatever reason had the intention to possess the land and put it to his own
use, whether or not he also knew that some other person had a claim or right to the land.
-Buckinghamshire County Council v Moran- ‘there must not merely be an intention to own or even
an intention to acquire ownership but an intention to possess’. This was approved by HOL in J A Pye
(Oxford) Ltd v Graham.
-In Pye v Graham, the HOL held that ‘necessary intent is an intention to possess (not to own) and an
intention to exclude all others if he could’.
-In fact the intention to possess can still be even if the claimant would have been prepared to accept
that permission to use the land had it been offered, (Lambeth LBC v Blackburn) or even would have
quitted possession if required (J Alston & Sons Ltd v BOCM Pauls Ltd)
c/f Clowes Developments v Walters (2005) – a belief that the land is currently possessed with the
permission of the paper owner is fatal.
 Acknowledgment that the land belongs to another will prevent intention to possess (as you
believe that you are there with permission). Awareness is fine and intention to possess can
exist.
Puvanal Sri 1
2) Physical possession
The law's requirements in factual possession is represented in the following judgement of Slade J in
Powell v McFarlane, also accepted by the House of Lords in the vital case Pye (JA) (Oxford) Ltd v
Graham: ‘Factual possession signifies physical control'...'single and exclusive possession'...'and the
alleged possessor must have been dealing with the land as an occupying owner might have been
expected to deal with it and no one else has done so'
- Purbrick v Hackney- successful adverse possessor cleared a derelict shed, erected a new roof and
fitted a makeshift door and fixed a chain. (He had done enough in all of the circumstances)
Council’s plans for the plot
Previous state of law:

Wallis’s Cayton Holiday Camp Ltd v Shell Mex & BP Ltd [1975]
Leigh v Jack [1879]
 If the paper owner have plans for the land and the adverse possessor does not act contrary
to that intention then no adverse possession claim can be made. Only if the squatter does
contrary acts against the plans by paper owner can AP be satisfied.
Overruled by:
Buckinghamshire County Council v Moran - COA held: This principle has been overruled by the
Limitation Act 1980, Sch 1 para 8(4), so even if the paper owner has plans for the land, adverse
possession is possible, provided there is factual possession and intention to possess.
The claimant is not required to prove that he believed that the land was his, or that he wanted to
acquire it, but more simply, that he meant to exclude all others if he could; Williams v Jones.
The council’s letter
Buckinghamshire County Council v Moran.

>
-Assertion by letter insufficient to prevent adverse possession.

-The action must be carried through i.e seek to repossess.
Puvanal Sri 2
LRA 2002 rule
Schedule 6 paragraph 1 – apply to be registered as the proprietor of a registered estate in land if the
adverse possession of the estate lasted for 10 years ending on the date of the application.
Baxter v Mannion- and the adverse possession continues’ on the date of making the application.
Crosdil v Hodder- If he quits the land cannot make application despite completing 10 years.
Schedule 6 paragraph 5:
- 1) Estoppel, unconscionability, ought to be registered.

-Jim would seek to apply under Sch 6 para 5(2)(a) & (b) on the basis of estoppel whereby in addition
to establishing adverse possession (factual possession & intention) for at least 10 years, Jim must
also show that he has detrimentally relied on some assurance by the registered proprietor where it
would be unconscionable for the assurance to be withdrawn.
‘Acquiescence’ is both express and implied by acquiescence.
(Check if other exceptions may apply)- 1)some other reason? -

2)boundary dispute?
-If Jim fails to show that he falls within the 3 exceptions then the local council may evict Jim simply
by proving title. If Jim is not evicted during the 2 year period, he may reapply for registration and
must be so registered.
Where an application is made by Jim

The local council has three choices.
1) They may consent- but rare.

2) They may object to it –(challenge the factual basis of AP)
3) Serve a counter notice (with or without objection). - the AP’sor cannot be entered as the new
registered proprietor unless any one of the 3 exceptional grounds under Schedule 6 para 5 LRA 2002
is satisfied.
Puvanal Sri 3
If the land was unregistered
- If 12 years has lapsed, the local council may be “statute-barred” from bringing a claim against Jim
to recover possession of their land after the period of limitation has passed (12 years: Section 15
Limitation Act 1980)
Puvanal Sri 4
Question 2 (UOL Q8, 2023)
In 1988 Jasper purchased Blossoms, a house with a small garden. Dirk already owned Lakeside, the
much larger property situated on the western side of Blossoms. Dirk’s house, which was built on
the eastern side of Lakeside, could hardly be seen from Blossoms. Jasper valued his privacy so
much that he decided to create a physical boundary between the two properties. He therefore
planted a line of shrubs four meters beyond the western wall of his house at Blossoms. When the
shrubs started to grow Jasper planted two rows of fruit trees on the four-metre strip of land
between the new shrubs and the side wall of his house. Over the years, Jasper meticulously
tended and pruned the trees, regularly fertilised the soil and gathered the fruit. He periodically cut
back the shrubs to help his fruit trees flourish. Later on, he installed an automatic watering system
on the strip of land and covered the trees with netting to protect the fruit from birds.
After the fruit trees had become established, Jasper won prizes when he entered his produce in
national agricultural shows. He regularly sold the fruit at the local farmers’ market. A few years
ago, Dirk had looked over the bushes from Lakeside and told Jasper how much he admired his
plum trees. Jasper thanked him and handed him some plums.
In 2015 Dirk sold Lakeside to Greenshield Energy plc. Last year, Greenshield Energy carried out a
survey of the land to determine its suitability for installing large solar panels. They discovered that
the border between Blossoms and Lakeside runs along the side wall of Jasper’s house so that the
strip of land containing the shrubs and fruit bushes actually belongs to Lakeside. Greenshield
Energy’s solicitors have now written to Jasper telling him to remove the trees and bushes and
vacate their strip of land immediately.
Advise Jasper
Answer guidelines:
 Consider the strength of Jasper’s claim by reference to how, if at all, his use of the land
satisfies the elements of adverse possession (Pye v Graham).
 Can he establish that he has factual possession with the intention to possess, and that his
possession is adverse and lasting for the requisite period?
 What does the common law tell us about the tests of factual possession and intention?
 Apply the tests – it is fact sensitive and that decided cases are not necessarily determinative.
 Find ways to use legal decisions to shape arguments about the facts – by distinguishing them
or using them by analogy.
Answer pointers:
Factual possession - The physical acts:
 The courts can take a holistic approach to the determination of the existence of adverse
possession by looking at the merit of all the requirements rather than fine slicing each event
o It is inappropriate to dissect the facts and assess each category of conduct in

isolation.
o In Palfrey v Wilson[2007] where Tuckey LJ emphasised the need for a “holistic”
approach to the facts, stating that a judge was not required to “fine slice each and
every event and assess its individual merit”.
o There are two key variables: what is the land in question, and what has the squatter
done?
o Red House Farms v Catchpole [1977] is a good illustration of the fact that limited
activities on useless land will do for the purposes of adverse possession.
 Jasper’s possession is clearly not hidden or disguised (s.32 Limitation Act 1980)
Implied licence?
 Might the exchange Jasper has with Dirk amount to (implied) permission to use the land
o Hicks Developments Limited v Chaplin [2007] EWHC 141 (Ch) the disputed land was
owned by a development company but had been planted and maintained by the
squatter. At one point the development company and the squatter agreed that a
boundary hedge should be planted to separate the disputed land from the reminder
of the land intended for residential development. It was argued that the agreement
to plant the hedge was evidence of an implied licence.
o Briggs J rejected this contention and found in effect that the purpose of the hedge
was to provide a barrier between the rustic land and the land intended for
development. The motivation for the agreement was cosmetic and the discussions
did not reference nor entail even impliedly questions of ownership or permission.
 When did the three elements coincide and the adverse possession begin?
o Advising on plausible possibilities about when the limitation clock may start (even in
the absence of specific dates) is important because it affects which set of legislative
provisions apply and why
 If the factual basis of AP started by 1990, then 12 years will be completed before 1925. LRA
1925 applies
o If 12 years has lapsed, Greenshield Energy may be “statute-barred” from bringing a

claim against Jasper to recover possession of their land after the period of limitation
has passed (12 years: Section 15 Limitation Act 1980)
o Section 75 LRA 1925 – The are trustees for J
o Section 70(1)(f) LRA 1925- they have an overriding interest
 If the factual basis of AP started after 1990, then LRA 2002 applies as J cannot establish 12
years possession by 2003. LRA 2002 aplpies
He would argue the third exception under Sch 6 para 5(4): the boundary exception
Conditions:
(i) the land of the application is adjacent to that to which the claim relates
(ii) (the exact boundary has not been determined
(iii) the land to which the application relates has been registered for more than one year.
(iv)’for at least ten years of the period of adverse possession ending on the date of application,the
applicant reasonably believed that the land to which the application relates belonged to him’.
o This condition (iv) is only satisfied if the applicant mistakenly or reasonably believe
the land to be theirs, instead of engaging in deliberate theft of it.
o Zarb v Parry (2011) - COA held: applicants’ belief was reasonable and so they
succeeded in establishing title under the boundary exception. (Arden LJ in Zarb v
Parry- the belief must persist for 10 years up to the moment of application). This
view was adopted in IAM Group v Chowdrey (2012)
UKT Revision 2023
ADVERSE POSSESSION
Q6, 2021- Main Paper
Andy is the registered proprietor of Greenacre, a vast estate comprising three houses. Andy has
recently died, and has named his niece, Carrie, as the beneficiary of Greenacre. Upon visiting
Greenacre, Carrie discovers that Edmund is living in House 1. Edmund tells Carrie that he
purchased the house from the Nigel in 2009. He shows her a copy of the contract for sale and a
receipt for the purchase price.
Carrie also discovers Thomas locking the door to House 2. When Carrie challenges him, Thomas
says that he has acquired rights in House 2, and explains that Andy had given him a lease of House
2 in 1997. Thomas had paid rent for only the first six months, but has lived in House 2 ever since.
Carrie finds a copy of a letter written by Andy to Thomas asking Thomas to pay the rent or vacate
House 2. Thomas received the letter, but ignored it.
Carrie also finds that the boundary fence between House 3 and the neighbouring property is not
where it is as indicated in the land plan drawing that Andy had. Frederick, the owner of this
neighbouring property, tells Carrie that he replaced the fence in 2011 when it got destroyed in a
storm. Frederick did not check the land plan drawing when he put up the new fence, and assumed
that he has put it up at the correct place. As a result, two feet of the garden of of House 3 is on the
wrong side of the fence.
Advise Carrie as to whether Edmund, Thomas or Frederick might successfully apply to be

registered as proprietor of the parts of Greenacre they occupy.
Answer Outline
1. Requirements of adverse possession – Powell v Mc Farlane: factual possession and intent to

possess
2. Definition of factual possession

 Powell v Mc Farlane: appropriate degree of physical control ; what acts amount to
sufficient factual possession will depend on the circumstances
 Pye v Graham: ordinary possession by the squatter without consent of the owner
 Edmund: living in the house constitutes sufficient factual possession

 Thomas: storage and locking establishes factual possession – Purbrick v Hackney LBC
 Frederick: enclosing the land with a fence clearly establishes possession
3. Definition of intent to possess

 Powell v Mc Farlane: intent to exclude the world at large, including the paper owner,
so far as reasonably practicable
 Pye v Graham: does not include an intent to own
 Thomas and Frederick’s acts of locking and enclosure clearly demonstrates an intent to
secure the premises
 Surely Edmund would have also secured the house from entry by intruders
UKT Revision 2023
4. Determining whether the provisions of LRA 1925 or LRA 2002 will apply
 12 years of factual possession for Edmund, Thomas and Frederick ending after 13
October 2003
 LRA 2002 applies
5. What Edmund, Thomas and Frederick must do in order to be successfully registered as the
new proprietors:
 must comply with the procedure in Sch 6 LRA 2002

 Para 1: apply to be registered as properitors after being in possession for at least 10
years
 Para 2: the Registrar must notify Downturn Council of the applications
 Land Registry Practice Guide: Downturn Council has 65 business days to respond to
the notice
Options open to Downturn Council: do nothing, consent, oppose (object & serve counter-notice):
- If the council does nothing or consent: their applications are successful
- If the council opposes : their applications are rejected, unless the exceptions under para 5
applies:
Exceptions:
 Para 5(2): it is unconscionable because of an equity by estoppel
 Para 5(3): the applicant is entitled to be registered for some other reason
 Explanatory Notes: example – the squatter paid the full purchase price, but
title was never formally conveyed to him
- Edmund can rely on this exception
- Edmund’s application will be successful
Para 5(4): relates to a boundary dispute where the squatter is under a reasonable belief that the
land belonged to him
- Frederick’s claim relates to a boundary dispute
- However, he replaced the fence where he assumed it should be, without seeking
professional advise
- His belief that he placed the fence at the correct place may be unreasonable
- Frederick’s application may be rejected
Para 6(1): where a person’s application under Para 1 is rejected, he may make a further application if
he remained in factual possession from the date of the application until the end of 2 years from the
date of the rejection
Para 7: the second application will be successful, unless action has been brought within para
6(2)(a)(b) or (c):
- Exception: Para 6(2)(a) he is a defendant in proceedings which involve asserting a right to
possession of the land, (b)judgment for possession of the land has been given against him in
the last two years, or (c)he has been evicted from the land pursuant to a judgment for
possession
 Carrie is advised to take steps to evict Thomas and Frederick immediately, or at least within
2 years of their applications
UKT Revision 2023
Q5, 2021 – Re-Sit paper
Robert is the registered proprietor of Rose Cottage. Rose Cottage is situated next door to Lily
Cottage, a property that has never been occupied ever since Robert moved into Rose Cottage.
Robert does not know who owns Lily Cottage, but he had for some time been interested in
purchasing it. In 2010, he broke the lock on the front door of Lily Cottage to store his camping
gear. In 2011, he decided to contact the Land Registry to find out who owns that cottage. He
discovers that Nigel is the registered proprietor of Lily Cottage. Being a keen gardener, Robert
used the garden of Lily Cottage to grow organic vegetables and some wild flowers. Robert also
used his own money to renovate Lily Cottage to make it suitable for occupation by his guests.
Robert has frequently put up his weekend guests in Lily Cottage. Robert’s efforts have increased
the value of Lily Cottage.
In 2017, Nigel visits Lily Cottage and sees Robert tending to the vegetable patch. He tells Robert
that he does not mind Robert using the cottage for now. Robert proceeded to ask Nigel if he
would like to sell Lily Cottage. Nigel explains that he has a sentimental attachment to Lily Cottage,
and does not want to sell it.
Robert now seeks your advice as to whether he has acquired any rights in Lily Cottage.
Answer pointers:
1. Requirements of adverse possession – Powell v Mc Farlane: factual possession and intent to

possess
2. Definition of factual possession
- Powell v Mc Farlane
- Purbrick v Hackney LBC
- The clock begins in 1990
3. Vegetable patch and wild flowers

- Dyer v Terry, Ellett-Brown v Tallishire
4. Interruption of / stopping the clock

- Issue: Robert asking Nigel about the sale of Lily Cottage
- s29(2) Limitation Act 1980: If the person in possession of the land acknowledges the title of
the person to whom the right of action has accrued, the right shall be treated as having
accrued on and not before the date of the acknowledgment
- s30(1) Limitation Act 1980: To be effective for the purposes of section 29 of this Act, an
acknowledgment must be in writing and signed by the person making it
- Lambeth London Borough Council v Bigden (2000): an offer to rent the property amounts
to an implied acknowledgment of title
- Lambeth LBC v Blackburn -The intention to possess can still exist even if the claimant would
have been prepared to accept that permission to use the land had it been offered
- J Alston & Sons Ltd v BOCM Pauls Ltd : Intention to possess would also exist even if the
squatter would have prepared to quit possession if required
5. Definition of intent to possess

- Powell v Mc Farlane: intent to exclude the world at large, including the paper owner, so far
as reasonably practicable
- Pye v Graham: does not include an intent to own
UKT Revision 2023
6. Determining whether the provisions of LRA 1925 or LRA 2002 will apply
- Factual possession begins in 1992 or later - 12 years of factual possession ends after 13
October 2003
- LRA 2002 applies
7. What Robert must do in order to be successfully registered as the new proprietor:

Discuss procedure in Sch 6 LRA 2002
Para 1: apply to be registered as proprietors after being in possession for at least 10 years
Para 2: the Registrar must notify Nigel of the applications
- Land Registry Practice Guide: Nigel has 65 business days to respond to the notice
- Options open to Nigel: do nothing, consent, oppose (object & serve counter-notice)
- Option 1 and 2: Robert’s application is successful
- Option 3: Robert’s applications is rejected
- Exceptions:
- Para 5(2): it is unconscionable because of an equity by estoppel
- Para 5(3): the applicant is entitled to be registered for some other reason
- Explanatory Notes: example – the squatter paid the full purchase price, but title was never
formally conveyed to him
- Para 5(4): relates to a boundary dispute where the squatter is under a reasonable belief
that the land belonged to him
 Discuss the possibility of Schedule 6 paragraph 5(2) applying

Para 6(1): where a person’s application under Para 1 is rejected, he may make
- a further application if he remained in factual possession from the date of the application
until the end of 2 years from the date of the rejection
Para 7: the second application will be successful unless the exceptions below applies:
- Exception: Para 6(2)(a), (b), (c) –
o If he is a defendant in proceedings which involve asserting a right to possession of
the land, or
o judgment for possession of the land has been given against him in the last two
years,
o or he has been evicted from the land pursuant to a judgment for possession
Robert is advised that Nigel can take steps to evict him immediately or at least within 2 years of his
application. However if Nigel remained did nothing then Robert may reapply at the end of a further
2 years and be registered as the new owner of the land
Co-ownership (Severance) 2021
In 2006 four bankers Andrew, Belinda, Cindy and Davina purchased Seaview, for them to use as a
weekend cottage. They made equal contributions to the purchase price, and title to Seaview was
conveyed to all four of them.
In 2007 Andrew decided to emigrate to Australia. He therefore sold his interest in Seaview to Edna.
Belinda disliked Edna. She therefore wrote to Cindy and Davina to tell them that she was urgently
looking for somebody to buy her share. Belinda subsequently changed her mind about selling when
she realised that she would be able to use Seaview when Edna was not there.
In 2008 Cindy ran into financial difficulty and offered to sell her interest to Davina. They discussed
the possibility over several months but before they could agree on the terms Cindy was killed in a
boating accident. By her will, Cindy left all her property to her brother Frank.
Belinda now wants Seaview to be sold, but Davina prefers to retain the cottage.
Advise Belinda. If Seaview is sold, who would be entitled to the proceeds of the sale?
Answer outline:
 Sections 34 and 36 of the LPA 1925

 Four unities: possession, interest, time and title
In 2007 Andrew decided to emigrate to Australia and sold his interest in the land to Edna
A sufficient ‘act’ for the purpose of the rule in Williams v Hensman (An act of a JT operating upon
his own share) typically involves the disposition of a joint tenant’s equitable share to a third party by
way of sale or security.
An act operating on his own share -Williams v Hensman: disposing one’s own interest in such a way
as to sever it from the joint property by manifesting an intention to no longer be part of the joint
tenancy. The very action of dealing with one’s own share thereby severs the joint tenancy.
First National Securities v Hegerty[1985]- if one joint tenant mortgage the property fraudulently, his
interest would be severed and the other joint tenants shares would be free of the mortgage.
This method requires legally enforceable ‘act’ operating on one’s own share, not an unenforceable
intention to sever. Section 2 LP(MP) Act 1989/Section 53(1)(c) LPA 1925 is usually complied with.
A B C D (legal owners)
_____________________________________
(E) [B + C + D] (in equity)
(TIC) (JT)
Belinda wrote to Cindy and Davina about selling her interest to them
 When an equitable joint tenant gives notice in writing to the other joint tenants of his
intention to sever the joint tenancy, the applicable law is Section 36(2) LPA 1925.
 Section 196(4) LPA 1925 – Service deemed effective if not returned by Post Office. So long
as there is evidence that the written notice was sent (e.g. by registered post), it seems that it
does not have to be received by the other joint tenants to be effective to sever.
 Kinch v Bullard : one JT sent a notice to another JT. He never saw it (suffered heart attack)
and it was destroyed by the sender, hoping to benefit from the right of survivorship under a
JT. Ct held: written notice was served effectively by delivery.
Notice in writing may take many forms:

 Re Draper’s Conveyance: It was held that the service of the summons was sufficient to sever
the joint tenancy as it indicated a clear and immediate intention to sever the joint tenancy.
 Gore & Snell v Carpenter: Severance will only be effective if the joint tenant manifests an
intention of an immediate desire to sever his interest. It would not be sufficient to express
an intention to sever sometime in the future.
 Harris v Goddard ; ‘A desire to sever must evince an intention to bring about the wanted
result immediately’ (Lawton LJ)
 Re 88 Berkeley Road : The service is effective when the letter is sent by registered post,
even if the co-owner seeking to sever signs on behalf of the recipient to prove receipt of the
notice.
Belinda subsequently changed her mind about selling when she realised that she would be able to
use Seaview when Edna was not there.
-Will this affect her share as a joint tenancy?
A B C D (Legal)
___________________________
E B [C + D] (Equitable)
(TIC) (TIC) JT
In 2008 Cindy ran into financial difficulty and offered to sell her interest to Davina.
Mutual agreement:
 Burgess v Rawnsley- an oral agreemeent by one joint tenant to purchase the share of the
other had effected a severance, Sir John Pennycuick -‘The significance of the agreement is
not that it binds the parties, but rather that it ‘serves as an indication of a common intention
to sever.’
 Gore and Snell v Carpenter (1990) – No severance here as the wife was waiting for other
financial affairs in their divorce to be settled before they came to a final agreement as to the
shares.
>Discuss if there was a firm and final/conlusive agreement

Mutual conduct:
 Inference of Lord Denning in Burgess v Rawnsley (1975). Lord Denning found Mutual
Conduct in the context of abortive negotiations for purchase.
 Gore & Snell v Carpenter (1990) Blackett-Ord J - mere negotiations alone are not the same
thing as “course of conduct”.
Did severance happen? Discuss both possibilities
-If there was an act of severance, Cindy would be a TIC in equity. Her interest will pass on her will.
(to Frank)
A B D (LAW)
____________________
E F B D
(TIC) (TIC) (TIC) (last JT=TIC)
¼ ¼ ¼ ¼
• The legal title is rectified to reflect only the remaining joint tenants on the legal title.
(s.164, LRR 2003). (Only when a JT dies)
Alternative argument:
However, if the courts hold that Cindy had not severed her interest then Cindy is a JT and her
interest will pass to Davina (the next JT)
A B D (LAW)
______________
E B D (EQUITY)
(TIC) (TIC) (last JT= TIC)
¼ ¼ (C shares pass to D = 2/4)
Belinda now wants Seaview to be sold, but Davina prefers to retain the cottage
Section 11,12,14 and 15 of the TOLATA 1996 has to be discussed.
Section 11(1) TOLATA 1996 : duty to consult

 Requires trustees to consult the beneficiaries as to the exercise of their extensive powers
and to have regard to the wishes of the majority in value.
 The trustees need not give effect to the wishes of the beneficiaries, only those consistent
with the trust.
Section 12 TOLATA 1996: right to occupy
There are limitations to use Section 12 TOLATA, where a beneficiary subject to a trust of land is
entitled by reason of his/her interest of possession in land to occupy the land any time, if at that
time:
> Section 12(1)(a) TLATA 1996 -The purposes of the trust must include ‘making the land available’
for occupation.
> Section 12(1)(b) TLATA 1996- The trustee holds the land for the purpose of occupation.
> Section 12(2) -A beneficiary has no ‘right to occupy’ land which is either ‘unavailable or unsuitable’
for occupation by him.
Discuss Sections 14 and 15 TOLATA 1996: Whether court would exercise its discretion under TOLATA
1996 in favour of the sale or not.
Section 14 TOLATA 1996 : Disputes as to sale

 anyone with an interest in land subject to a trust may apply to the court for an order relating
to the trustees function or to determine the extent and nature of beneficial interest
 An application is made to the court usually for an order for sale and the courts will look at
factors provided under Section 15 to determine on an application
Section 15 TOLATA 1996:Factors to consider
Section 15(1)(a) : ‘the interests of the persons who created the trust’
 this factor will cause problems if the trustee does not express his intention
Section 15(1)(b) : ‘the purposes for which the property subject to the trust is held’
 Re Ever’s Trust (1980) - Here the sale was postponed as the purpose of the trust
demonstrated the intention to provide a home for the children. The purpose of the trust
could still be achieved.
Section 15(1)(c): where there are minor in the house.
o Williams v Williams- look to see whether the property is needed for the provision of a family
home for the children of a relationship that has broken down.
o Edwards v Lloyds TSB. - The co-owner was able to postpone a sale for five years in order to
safeguard a home for the children of the relationship, even though the application was
made by a mortgagee whose mortgage took effect over more than 50% of the value of the
property.
o Harris v Harris - courts will consider if the property is required to provide accommodation
for the co-owners.
Section 15(1)(d) : interest of creditors
Distinguish: The Mortgage Corporation v Shaire - Ct held: There is discretion in favour of families
under Section 15. Nothing in the facts of this case indicated that the mortgagee’s interest should
take priority over, for example, those of resident children, and commented that pre-TOLATA cases
should no longer be regarded as decisive.
Conclusion: If the court makes an order a sale, Belinda and Davina’s entitlement will depend on the
equitable interest each holds in Seaview.
If Cindy’s (TIC) - interest passed to Frank
-Both Belinda and Davina would be entitled to quarter (1/4) or 25% of the proceeds. Frank and Edna
would also be entitled to the same ¼ (25%)
If Cindy’s (JT) discussion with Davina did not amount to a severance.
- Davina being the only other JT left would receive Cindy’s shares.
- Belinda will receive her own initial quarter ¼ (25%) share in Seaview and Edna owns ¼ (25%).
Davina however will own 2/4 (50%) share in Seaview.
Co-ownership (Implied Trust) 2021
In 2002 Nick and his girlfriend, Ann, bought a small house for £100,000. Nick contributed £90,000
and Ann contributed £10,000, a gift from her mother Jean. The house was registered in Nick’s sole
name. Nick was an unsuccessful musician, but Ann had a well-paid job and paid most of the
household expenses. In 2003 Ann gave birth to a son, Charlie. In 2004 Nick and Ann invited Jean to
come and live with them. Jean provided £30,000 to have an extra bedroom and bathroom added
to the house for her use. In 2005, while Jean, Ann and Charlie were away on holiday, Nick
mortgaged the house to the Midtown Bank. He has recently defaulted on his mortgage
repayments and the bank is seeking possession of the house with a view to selling it.
Advise Jean and Ann. If the house were sold, how would the proceeds of sale be divided?
Answer pointers
 Could Ann and Jean could rely on equity (resulting/constructive trust or propriety estoppel)
to claim an interest in their favour.
 Since there is no written evidence of express trust; it is necessary to consider whether either
had acquired an interest under a resulting trust, constructive trust or proprietary
estoppel(Section 53(2) of The Law of Property Act 1925)
Where the parties contributed unequally to the purchase price, they are presumed to hold
beneficially as TIC in proportion to their respective contributions (Bull v Bull).(OTF: No express
declaration of their beneficial interest)
Jean: Is the £10,000 a gift: If Jean were to claim an interest, the onus/burden of proving that the
£10,000 payment was not a gift is on Jean.
Ann: As the £10,000 is a gift so it belongs to Ann. Resulting trust applies. Ann would be advised to
argue a constructive trust in her favour to enlarge her share.
-Discuss resulting trust
Springette v Defoe[1992] is a classical resulting trust case where based on the proportions of the
parties financial contributions, the Court of Appeal held that a resulting trust applied, awarding a
75:25% split in favour of Springette, since the common intention had never been communicated.
The Court of Appeal had held that the absence of express discussions precluded any claim to
apportion shares otherwise than in proportion to contributions to the purchase price.
Laskar v Laskar- A mother and daughter purchased a property together. When their relationship
broke down, the daughter instituted proceedings claiming her share. The court held that since the
property had been purchased as a joint investment it would not be appropriate to apply the
presumption of joint ownership. This was nothing more than a business venture. A resulting trust
applied and each party was entitled to the value of her own contribution.
>Since Ann made financial contribution, applying a resulting trust approach, Ann would be entitled
to 10% of the proceeds of sale since she contributed 10% (£10,000).
Constructive trust
- It is necessary to show first that there was common intention that the beneficial interest would be
shared since the house is registered in Nick’s sole name.
-Conditions for a constructive trust to arise:
Puvanal Sri 1
> Lloyds Bank v Rosset –
1)arrangement, agreement or understanding
OR
Where there is a failure to show any arrangement, agreement or understanding,

2)only direct contributions to the purchase price or mortgage instalments would suffice.
OTF: Ann had paid £10,000 so that will give her a share, but she also contributed to most of the
household expenses. Not enough shares on Rosset’s requirements.
>Midland Bank v Cooke - where the CoA held that the wife’s share of the wedding gift was to be
treated as a direct contribution to the purchase price which gave her a beneficial interest in the
house. Failure of agreement as to the amount she has to take, the court will assume that they
intended their respective interest to be assessed by undertaking a survey of the whole dealings
between them. CoA awarded the wife half a share (1/2) based on her contributions.
-Lefoe v Lefoe - The couple were married for 40 years. The house was worth £1,500,000, registered
in husband’s sole name. Over the years the wife did not make any financial contribution to the
purchase price but paid other housekeeping bills and paid off a second mortgage, etc. Court’s held:
Followed the Midland Bank v Cooke approach instead of the strict Lloyd’s Bank v Rosset and took a
more holistic approach to an acquisition of interest and decided that the wife should get 50%
interest in the property.
Followed Lloyd’s Bank approach:
The Court of Appeal’s decision in Oxley v Hiscock.
Discuss this case.

Acquisition = Follow Lloyds Bank v Rosset (express discussion OR $)
Quantification = have regard to the whole course of dealing between the parties
> This approach as to quantification was adopted and applied in the case of HOL case of Stack v
Dowden [2006].
> Abbott v Abbott [2007]
> Jones v Kernott [2011]
>They had a child named Charlie. Nick and Ann both had contributed towards the purchase initially
and Ann paid the household bills.
- Discuss Proprietary Estoppel (an option)
Priority of interest between Ann, Jean and Midtown Bank

Issue: Whether the bank will be bound by Ann and Jean’s interest or can the Bank take free of their
interest.
Does the doctrine of overreaching apply?

As the capital money is paid to only one trustee (Nick), the doctrine of overreaching will not operate
(City of London Building Society v Flegg; Wiiliams v Glyn’s Bank Ltd v Boland)
Puvanal Sri 2
Protection:
Section 43 LRA 2002 : Restriction
Schedule 3 para 2 LRA 2002: actual occupation

>Where overreaching fails, Ann and Jean can show that that they have an overriding interest
pursuant to Schedule 3 para 2 of the Land Registration Act 2002. To establish actual occupation, Ann
and Jean must satisfy certain conditions imposed under Sch 3 para 2 LRA 2002.
Overriding Interest
1)Firstly, they must have a valid and enforceable property right immediately before the mortgage to
the bank.
2)Secondly, they must be in actual occupation

Chhokar v Chhokar, Link Lending v Bustard, Thompson v Foy; Stockholm Finance
3)Thirdly, the actual occupation needs to be discoverable on reasonable careful inspection.
4)Fourthly, the bank must have actual knowledge of the claimant’s interest at the time of
disposition.
5)Fifthly, if enquiries are made of the claimant’s interest and the claimant does not reveal their
interest then the interest would not override if it is reasonable to disclose.
TOLATA: Discuss Section 12,14 and 15 TOLATA.
- Discuss Sections 14 and 15 TOLATA 1996

Whether the court would exercise its discretion under TLATA 1996 in favour of the sale or not.
-Section 15(1)(a) -the interests of the persons who created the trust
-Section 15(1)(b) -‘the purposes for which the property subject to the trust is held
-Section 15(1)(c)- welfare of minor would be relevant
-Section 15(1)(d)- Interest of a secured creditor
 On the facts, Charlie is still a minor

 Jean is a senior citizen whom believed that she could live in the house till her last days
(Edwards v Royal Bank of Scotland-[2010] age, health of beneficiary)
 Ann is an innocent spouse/partner that did not know that the mortgage was taken and
would arguably not have agreed to it.
Distinguish Bank of Baroda v Dhillon- An order for sale granted even though the wife had an
overriding interest under Schedule 3 para 2 LRA 2002 which bound the bank. The crucial factor was
that the children were grown up and after the sale the wife would have enough money for other
accommodation.
The Mortgage Corporation v Shaire - Ct held: There is discretion in favour of families under Section
15. Nothing in the facts of this case indicated that the mortgagee’s interest should take priority over,
for example, those of resident children
Edwards v Lloyds TSB-The co-owner was able to postpone a sale for five years in order to safeguard
a home for the children of the relationship, even though the application was made by a mortgagee
Puvanal Sri 3
whose mortgage took effect over more than 50% of the value of the property.
Williams v Williams- look to see whether the property is needed for the provision of a family home
for the children of a relationship that has broken down.
The courts might postpone the sale given Ann, Jean & Charlie situation. (as in Edwards v Lloyds TSB).
However, if the courts grant an order for sale, arguably, Ann and Jean will be entitled to their share in
the proceeds of sale proportionate to their beneficial interest. Midtown Bank will be entitled to Nick’s
share.
Puvanal Sri 4
Revision- Easements 2022
Question 1
Last year Ian sold the registered title of his public house, The Queen Vic, to Mick. He retained
ownership of the neighbouring takeaway restaurant, Ian’s Plaice. Ian now seeks your advice on each
of the following matters:
(a) If he can continue to leave the bicycle he uses to deliver takeaway meals in a locked shed behind
The Queen Vic. He started using the shed a few years ago after he had a bicycle stolen from outside
the restaurant. (Reservation for Ian – common intention /necessity)
(b) If he can prevent Mick from using an alleyway belonging to Ian’s Plaice. The alleyway provides
access to and from the rear of The Queen Vic to the main road. It is the only way for deliveries to be
made to the pub’s cellar without going through The Queen Vic’s public bar. Ian had used the
alleyway for deliveries until he stopped using the property as a public house some months before he
sold it to Mick. (Grant to Mick - Wheeldon v Burrow, common intention)
(c) If he can use the boxing ring in the upstairs games room at The Queen Vic. A few weeks after the
sale of The Queen Vic, Mick gave Ian written permission to use the boxing ring. However, after
receiving complaints about Ian’s unsportsmanlike behaviour, Mick has asked Ian to stay away. Ian
wants to be able to continue using the ring to practice his boxing. (licence, permission)
Advise Ian on each of the above matters.
Answer pointers:
Re Ellenborough Park: 1) DT & ST 2) Separate ownership/occupation 3)Ent accommodates DT 4) Ent

capable of forming subject matter of the grant.
a)Leave the bicycle he uses to deliver takeaway meals in a locked shed behind The Queen Vic.
The Queen Vic (ST); Ian’s Plaice (DT) – storage space for security purposes;
 If so, is the claim too extensive as a matter of law and on the facts to exist as an easement
(ouster)? Batchelor v Marlowe; Moncrieff v Jamieson
 Wright v Macadam: Not exclusive possession
Implied Reservation: Ian wants to RETAIN a right over The Queen Vic which he previously owned
1)Necessity OR 2)Common Intention
Express reservation –
 nothing to indicate express reservation of the easement in the conveyance to Mick.
Implied reservation:
 However, easement of necessity and common intention are rare, one of the reason being
that the vendor could always expressly reserve an easement
 In Peckham v Ellison (2000) the plaintiffs held to enjoy the benefit of an impliedly reserved
easement by way of common intention, the court described such a process as exceptional
and such a claim was denied Chaffe v Kingley (2000).
1
a) necessity? Possibly- it is not safe to park the bicycle outside (was previously stolen)
b) common intention?
Wong v Beaumont Property Trust [1965]- An easement can be implied into an agreement in
order to give effect of the common intention of the parties with regard to the use of land.
Restaurant ventilation was given as common intention was expected since restaurant was at the
basement and there was no other form of ventilation
b)The alleyway provides access to and from the rear of The Queen Vic to the main road. It is the
only way for deliveries to be made to the pub’s cellar without going through The Queen Vic’s
public bar.
The Queen Vic (DT); Ian Plaice (ST) – short cut ; London Bleinheim Estates v Ladbroke(convenient)
Implied Grant: From Ian to Mick when he sold The Queen Vic to Mick.
1)Wheeldon v Burrow
Conditions: a) The vendor must have used the ST for the benefit of the DT, and
b) continuous and apparent, and/or
c) necessary for the reasonable enjoyment of land.
Ian had used the alleyway for deliveries until he stopped using the property as a public house
some months before he sold it to Mick.
 As long as the easements are available to be used whenever the need arises it will suffice.
The right need not be used each day/month.
 Continuous and apparent use is deemed from the existence of the alleyway itself.
 Campbell v McGrath (2006) - Barrett J stated bluntly, that the element of continuity has
largely been ignored. Many cases barely, if at all, draw a distinction between continuous and
apparent, so that continuousness is merged into and disappears into the question of
apparency.
Previously, Ian used it for deliveries.

 It was for the benefit of the dominant tenement (The Queen Vic) Ian had used the alleyway
for deliveries until he stopped using the property as a public house some months before he
sold it to Mick. Therefore the quasi easement of right of access (way) would be converted
into an easement when Mick bought the restaurant.
2) Common Intention
It is the only way for deliveries to be made without going through the bar
 Argubly it is within the common intention of the parties that in order to operate The Queen
Vic as a bar it is convenient to have the access to the alleyway for deliveries to take place
without interrupting or inconveniencing the business.
 Not necessity as deliveries can take place without the need of the alleyway
2
c)Mick gave Ian written permission to use the boxing ring. Discuss possibilities of an easement or
licence.
 Easement: The right to box? Recreational right? Does it benefit the DT (Ian’s Plaice) or Ian
personally?
 Written permission – does it comply with Section 2 LP(MP) A 1989? Unlikely.
 Licence: Ashburn Anstalt v Arnold; Lloyd v Dugdale – licence can be revoked at will.
3
Question 2 (Q6, May 2021)
Ben is the registered freehold owner of Cherry Pickers, a farm growing fruit and vegetables. During
the summertime Cherry Pickers opens for the public to visit and pick fruit. In January 2016, Ben sells
Jack the registered freehold title to a plot of land adjacent to the main road which Jack plans to use
for his catering van. As part of the sale transaction Jack expressly agrees that Ben has the right to
erect an advertising board for “Cherry Pickers” just inside the boundary of Jack’s land.
In March 2017 Ben grants a four year lease on a second plot of land, Cherry Pickers, to Oliver, the
owner of Peckish, a roadside café. Oliver wishes to use the land to create a children’s playground for
his customers. After granting the lease Ben continues driving his tractor along a track at the rear of
the plot of land to reach part of Cherry Pickers that is otherwise difficult to reach. Ben also tells
Oliver he can use a barn at Cherry Pickers to store surplus tables and chairs for which he does not
have space in the cafés ’. Oliver is so delighted that he invites Ben’s children to use Peckish
playground at any time.
In March 2021, Ben renews Olive lease for a further four years. Shortly afterwards he falls out with
Jack and Oliver. After a furious row, Jack removes the sign for Cherry Pickers and replaces it with one
advertising Peckish. Oliver refuses to let Ben drive his tractor over the track and tells him that his
children are no longer welcome to use the playground at Peckish. Ben now wants Oliver to remove
the café’s furniture from his barn.
Advise Ben.
Answer pointers:
Satisfy the terms of the guidelines for set down in Re Ellenborough Park. Rather than run through all
of them in detail, good answers will give advice that emphasises the moot issue.
Ben: signage
Advise Ben that he can insist on the reinstatement of the advertising board if it has been created as
an easement.
 Does it matter that the right accommodates B’s business on the dominant land (Hill, and
Moody v Steggles)
 If B is likely to succeed then the advice should turn to if/how he acquired it.
1) Jack expressly granted it to Ben

2) How might it have been formally created?
a. Jack expressly agrees that Ben has the right to erect an advertising board for “Cherry
Pickers” just inside the boundary of Jack’s land
i. Registered (Legal & Protected)
ii. Deed – Equitable (advised to register) or Written contract (Equitable)-place
a Notice: Section 34 LRA 2002 to protect
iii. Orally made – cannot be created unless through estoppel -not applicable
4
B’s right to continue driving his tractor on the track behind Peckish (reservation – common
intention/neccesity)
The advice on whether B’s right to continue driving his tractor on the track behind Peckish can be an
easement does not need to be lengthy. Right of way: London Blenheim Estates v Ladbroke
1) Most of the advice should consider when and if B might successfully claim that the right has
been impliedly reserved – Use the limited facts to explore the possibility that it has been
acquired by necessity or common intention.
 The use of the track is otherwise difficult to reach – common intention more likely but NOT
necessity.
Ben can insist on the removal of the cafe furniture from his barn unless Oliver has an easement of
storage.
1)Re Ellenborough Park:
 Does O’s use of the barn for storing surplus furniture accommodate the dominant land?
 If so, is the claim too extensive as a matter of law and on the facts to exist as an easement
(ouster)? Batchelor v Marlowe (reasonable use test) ; Moncrieff v Jamieson (possession &
control test)
 Why might it matter if Ben is also using the barn? Wright v Macadam: no exclusive
possession
2)On acquisition, the arrangement, which started informally after the 2017 lease, seems to have
initially existed as a licence. Might O have been impliedly granted it as an easement when his lease
was renewed?
1) Here the advice may focus is on applying s.62 LPA 1925 but good answers would also find
ways of giving appropriate emphasis to the other three methods. (W v B, common intention
or necessity?)
B’s claim for his children to use the playground

The final claim – the recreational right to use the playground – allows for a consideration of the
reach of the ruling and reasoning in Regency Villas.
 Easement of leisurely rights accepted: Regency Villas Title Ltd v Diamond Resorts (Europe)
Ltd & Others [2018] : represents an important development in the law and confirmed that
the right to use sporting facilities can amount to an easement.
 As Lord Briggs commented, “This appeal offers an opportunity for this court to consider, for
the first time, the extent to which the right to the free use of sporting and recreational
facilities provided in a country club environment may be conferred upon the owners and
occupiers of an adjacent timeshare complex by the use of freehold easements.”
 “Where the actual or intended use of the dominant [land] is itself recreational, as will
generally be the case for holiday timeshare developments, the accommodation condition [in
Ellenborough Park] will generally be satisfied”
Even if Ben were to succeed in showing the right qualifies as an easement, there is presumably little
prospect that he can show that he has acquired it as an easement.
 Licence: Ashburn Anstalt v Arnold; Lloyd v Dugdale- he cannot enforce it. Only personal.
5
Question 3
Highlight Properties Ltd is the registered proprietor of a large industrial estate in the centre of
Lowtown that it has been using as a company headquarters. Last year it decided to split the estate
into smaller properties and sell them off. The estate was split into three units, with Highlight keeping
Unit 3.
Prior to the sale, the employees of Highlight habitually ate their lunch on the grass outside what is
now Unit 2 and parked their cars and walked across the forecourt of what is now Unit 1 to get to
work. Likewise, all the water pipes for the estate cross the land of Unit 3 as does an overgrown path,
the only access by foot. Last month, Unit 1 was sold to Nicky, a hairdresser, by registered disposition.
Unit 2 was let to Julian, a fashion designer, on a seven-year lease by deed, containing a covenant not
to assign or sub-let without landlord’s consent.
Initially, Julian objected to the noise created by Highlight’s employees at lunchtime, although he
agreed to drop his objections when Highlight agreed to lower the rent. Nicky does not like the
employees looking in at the people in his salon as they walk to work, so he fences off the parking
area. However most of Nicky’s customers come by foot and he has tidied up the footpath.
Highlight is expanding fast and threatens to cut off the water supply if its new employees cannot
park their cars. It has blocked off the path in retaliation. Julian’s business has now foundered and he
eventually obtained Highlight’s consent to assign to Guy, who manages to negotiate a lower price
because of the lunchtime gatherings.
Highlight now plans to sell to Maxibild, which seeks your advice as to the problems that it may
encounter.
Answer pointers
In regards to the water supply and the footpath – DT - Unit 1 & 2 (implied grant-Wheeldon v
Burrow)
>Julian (and then Guy) would want to claim these two rights as an easement in respect of Unit 2.
>Nicky would also want to claim these two rights as an easement in respect of Unit 1.(Nicky’s
customers come by foot and he has tidied up the footpath)
> Discuss if the rights can amount to easements according to the critera laid down in Re
Ellenborough Park.
 Right of way is the most common easements, whether limited to foot or not.
 A right to receive water through a pipe running on the servient land was accepted in
Goodhart v Hyett(1883)
 Clearly the rights above amounts to an easement, as it clearly increase the normal
enjoyment the land.
>The manner in which the easements are created is to be examined as it is not straightforward since
there is no evidence of an express grant of these easements.
6
Implied Grant:
1.Wheeldon v Burrows (1879) whereby the owner of land will be taken to have impliedly granted to
a purchaser of part of it all those rights capable of existing as easements, which the owner enjoyed
for the benefit of the land sold and exercised over the land retained.
The requirements of implied creation through Wheeldon v Burrow seem to be that these right of
way
1)must have been used by the common owner at the time of grant, and the rights claimed
2)must be reasonably necessary for the proper enjoyment of the land granted and/or
3)continuous and apparent.
 In respect to the water supply, there is no difficulty with these conditions as presumably, the
water serviced all the parts of the estate before subdivision and is obviously necessary for
the enjoyment of the land (Millman v Ellis)(1996) and continuous and apparent use is
deemed from the existence of the water pipes.
 In regards to the footpath, it is arguable whether Wheeldon v Burrows is satisfied. It is

reasonably necessary being the only access by foot, but being ‘overgrown’, there may be
some argument whether it was in use at the date of the grant or continuous and apparent.
 Campbell v McGrath (2006) - continuousness is merged into and disappears into the
question of apparency
> However it may satisfy both conditions if it is well defined although it is overgrown.
> Therefore, both these easements have been impliedly granted to the purchasers Nicky and Julian
in the sale of Unit 1 and leases of Unit 2 against the property retained by Highlight.
> As both grants were legal: Unit 1 was sold (assuming title was registered) and Unit 2 was leased by
deed, Section 27 LRA 2002 – need not be registered to be legal), the easements implied into them
will be legal.
 As such they will be binding on Maxibild as overriding interests under Schedule 3 para 3 to
the LRA 2002, if, as appears on the facts they:
o have been exercised in the past year prior to the disposals to Nicky and Julian, or
even if they were not,
o if they were either known to them or
o obvious on a reasonably careful inspection of the servient land.
 Likewise, the benefit will be passed to Guy, successor in title, to Unit 2 (dominant tenement)
as part of his estate.
 Possible to discuss implied grant through necessity in regards to the water supply. But not in
regards to the footpath.
o Re MRA Engineering- a real necessity must exist, not merely for convenience.
Implied Reservation
In regards to the right to walk and park cars by the employees (Implied reservation)
 A right of way as discussed above is the most common easement and as held in London and
Suburban Land and Building Co v Carey(1991),it was made clear that in principle, a right to
park on an access way for the purpose of unloading could be an adjunct to the right of way.
7
 However, there has been considerable controversy over whether a right to park can, of itself
amount to an easement, because a specific use amount to an exclusive possession of the
premise to the exclusion of the servient owner.
 In Newman v Jones, an easement of parking was permitted, but only if the right was
exercised generally and not in respect of a defined place. This has now been confirmed by
the COA in London and Blenheim Estate v Ladbroke (1994). Note: Moncrieff v Jamieson.
Maxibild should be advised that only the claim to general parking may be upheld.
> The next issue which seem a problem is the manner in which the easement is created i.e. how was
it granted?
> The only possible way for Highlight (and then Maxibild) to claim an easement is by claiming a
reserved easement of necessity or common intention.
 For necessity - there would only be a successful claim if the land would be unsuitable
without the impliedly reserved easement, which is not the case here as the employees can
still use another route to walk to work and park on Highlights unit or further then Unit 1, and
walk in.
 For common intention - In Peckham v Ellison (2000) the plaintiffs held to enjoy the benefit of
an impliedly reserved easement by way of common intention, the court described such a
process as exceptional and such a claim was denied Chaffe v Kingley (2000).
OTF, it cannot be said that the parties had a common intention to the reservation of an easement
and it is unlikely that this ground would succeed. So, if Highlight has no easement on Unit 1, there
is nothing to pass to Maxibild and it will have to renegotiate with Nicky the adjoining owner.
Easement or licence?
In regards to the lunchtime activities (possible easement across Unit 2)
 It is highly unlikely that such a right could exist as an easement. It is not something that
benefits the dominant tenement i.e Highlight as it amounts to a right of recreation. (Re
Ellenborough Park), Regency Villas v Diamond Properties (not a recreational
property/facility, but an office building)
 Nevertheless just because the right is not an easement does not mean that it cannot amount
to some other right. OTF, we are told that after he had acquired the estate in land Julian
agreed to allow the lunchtime activities to continue and received consideration for it. There
seem to have been a contract between Highlight and Julian so as to create a contractual
licence (as nothing was done formally) to use the area at lunchtime.
 This right is purely personal between the parties, but can be enforced against Julian while he
is in possession. However licences are not interest in land and cannot bind successors in title
(Ashburn Anstalt v Arnold).
Proprietary Estoppel:
As a matter of property law, the obligation cannot pass to Guy when he buys the lease.
 Yet, it may bind him because of his conduct at the time of the assignment. OTF, we are told
that the lease cannot be assigned without Highlight’s consent and arguably Highlight
negotiated with Guy and Julian about whether to agree.
8
 Indeed, we are told that Guy obtains the lease for a reduced price because of the lunchtime
activities. This does suggest that Guy will be bound to give effect to the licence because it
would be inequitable for him to deny it.
 A constructive trust will be imposed upon him personally to give effect to the licence.
(Binions v Evans)
 It should be noted, finally, that because of this contractual licence between Julian and
Highlight, the benefit of the contract (i.e. the right to use the land of Unit 2) can be expressly
assigned under normal contractual principles. Therefore Maxibild should ensure that this
right is transferred to it explicitly.
9
UKT Revisions - PYQ 2023
EASEMENTS
Q1,2020, Main Paper
Michael was the registered owner of Meadow Farm, which consisted of a farmhouse set in a large
field and a small cottage, Rose Cottage, which sits in a walled garden alongside the farmhouse. The
front door of the cottage could be accessed via a driveway across the large field although there was
an alternative means of access via a narrow path that ran from the back door of the cottage to the
main road alongside the farmhouse.
In 2015 Michael granted a five year lease of Rose Cottage and the walled garden to Jim, an artist. A
few months after the lease was granted Michael told Jim he could use a shed at the corner of the
large field to store canvases and easels he used for his paintings. When the lease came to an end last
year, Michael sold Rose Cottage with the walled garden to Jim. Michael has now sold the remainder
of Meadow Farm to Eric, who wants to build an extension to the farmhouse on the field. This will
result in the shed being demolished, the driveway being blocked and the drains to Rose Cottage,
which currently run under the field, being removed to make way for the extension’s foundations.
Advise Jim.
Answer Outline
Identify that there are three possible easements (Re Ellenborough Park[1955]) and discuss their
method of creation of each easements separately.
A.Are they easements under Re Ellenborough Park (1956)?
1. Right of way over path – Borman v Griffith

2. Right to storage- Wright v Macadam
a. Discuss the possibility of exclusive possession :
i. Narrow test : Batchelor v Marlowe- reasonable use test
ii. Wider test : Moncrieff v Jamieson – possession and control test
3. Right to drainage - Walby v Walby
B. Discuss how they may have been impliedly granted or reserved.
1.Easement of way :
a.through the field arise by necessity- Nickerson v Barraclough [1980] (unlikely although
note the narrowness of the alternative access and the issue of vehicular access);
b.common intention - Stafford v Lee [1993] (easier to establish than necessity)- or
c.Wheeldon v Burrows[1879] (whether Michael exercised the route across the field from
Rose Cottage before leasing it out to Jim)
a. 2.Right of storage: it was given as a licence but might it have been transformed into an
easement via s.62 on the sale renewal of the lease. Sovmots v Secretary of State for the
Environment [1978]
1
3.Easement of drainage arise under :
a. necessity (possibly)
b. common intention (surely) or
c.Wheeldon v Burrows (more likely)
Apply the law to the facts and conclude on whether each of these easements will bind Eric.
Schedule 3 paragraph 3 LRA 2002:

1) it was within the actual knowledge of the person to whom the disposition is made, or
2) is it obvious on a reasonably careful inspection of the land, or
3) it has been exercised in the period of one year ending with the day of the disposition
Eric would be bound under this requirement
2
Q3, 2021-Re-sit Paper
Scott leases Ralph a cottage which forms part of Scott’s large country estate. The cottage has a small
garden, and is a short distance from a main road. There is a track that runs from the cottage across a
narrow strip of land belonging to Scott’s estate to the main road. Scott regularly walks from his
estate through the cottage garden to reach the track. The track is the fastest route by which Scott
can reach the nearest train station and the only means for Ralph to get access to the main road.
A few weeks after the lease is created, Scott allows Ralph to store his quad bike in a locked shed on
Scott’s land. When Ralph’s lease expires, he buys the registered freehold title to the cottage from
Scott. Ralph and Scott fall out after a quarrel. As a result Scott tells Ralph that he must pay to use
that part of the track that lies on the narrow strip of his land. Scott also insists that Ralph remove the
quad bike from his shed. Ralph therefore decides to lock his garden gate, preventing Scott from
using the cottage garden to reach the track. Scott seeks advice on his property rights.
Advise him.
Answer Outline:
Scott needs advice on whether his right of way over the cottage garden and Ralph’s claim to store
the quad bike and short cut across the narrow path over Scott’s land are capable in law of being
easements.
A.Are they easements under Re Ellenboorugh Park (1956):
1.For Scott: right of way over narrow path – Borman v Griffith

2.For Ralph: right to storage- Wright v Macadam
a. Discuss the possibility of exclusive possession :
i. Narrow test : Batchelor v Marlowe- reasonable use test
ii. Wider test : Moncrieff v Jamieson – possession and control test
B. Discuss how they may have been impliedly granted or reserved.
1.For Scott- implied reservation for the path: common intention- Re Webbs Lease [1951].
2.For Ralph-implied grant

b. common intention - Stafford v Lee [1993]
c. necessity -Nickerson v Barraclough [1980] (for the path) and
d. Section 62 LPA 1925 (for the path and storage) - Sovmots v Secretary of State for the
Environment [1978]
C. Protection: There are no 3rd party purchasers hence no discussion of:
1. Passing of benefit of easement – Section 187 LPA 1925

2. Passing of burden of easement – Schedule 3 paragraph 3 LRA 2002
3
Q6, Sept 2021
Greg is the registered proprietor of adjoining properties, Bluefield and Yellowfield. Bluefield
comprises a cottage with a detached garage. Greg lives in the cottage. There is a large house
situated on Yellowfield. Yellowfield is right beside the main road, and Greg often uses the driveway
across Yellowfield to get to the main road, although there is a separate access road which connects
the cottage to the main road. Using this access road will take Greg twice as long to get to the main
road.
When Greg built the properties a few years ago, he asked the builders to connect the drains
channelling waste from Yellowfield to the main sewer on Bluefield. These drains are concealed as
they run underneath the cottage on Bluefield.
In 2015, Greg decided to sell Yellowfield to Henry. This sale was completed by a registered
disposition in January 2016. Prior to the completion of the sale, Greg allowed Henry to move into the
house. When Greg noticed that Henry had a large collection of gardening tools, Greg told Henry that
he could store the gardening tools in the garage. Henry was grateful for Greg’s generosity, and so
does not object when Greg continues to use the driveway on Yellowfield.
In 2020, Greg sells Buefield to Ina by a registered disposition.
Ina wants to remove all the underground drains beneath Bluefield. She has also asked Henry to stop
using the garage, as she has recently acquired a car. In retaliation, Henry has told Ina she can no
longer use the driveway on Yellowfield.
Advise the parties.
Answer pointers:
1. Identify the potential easements

- the driveway across Yellowfield
- drains connecting to the main sewer on Bluefield
- storage in the garage on Bluefield
2. Do they satisfy the requirements in Re Ellenborough Park

- discuss whether the storage of gardening tools amounts to excessive use of the garage –
London & Blenheim Estates v Ladbroke Retail Park
3. Creation of the easements

-
a. The driveway
- Implied reservation - Common intention
o Pwllbach Colliery v Woodman
o Re Webb’s Lease
b. The underground drains

- Implied grant – under i.Necessity and ii.s.62(1) LPA 1925.
c. The storage
- Implied grant – under s.62(1) LPA 1925
4
4.The effect on Ina (purchaser for value- S.29 LRA 2002)
a. Ina cannot use the driveway as implied reservation by Greg in 2015 is unlikely (court do not
favour it)
b. Ina is bound by the storage easement and drainage:

Sch 3 para 3 LRA 2002
5
Question 2 (2020, UOL)
Brian owned Home Farm, a substantial agricultural property. Each of his four children moved away
from Home Farm when they went off to study at university. After the death of his wife in 2007 Brian
found it extremely difficult to run the farm by himself. He wrote to each of his children saying that if
they returned to help run the farm they ‘could expect to be handsomely rewarded when I die’.
Debbie, the only one of Brian’s children to respond to his letter, returned to live at Home Farm in
December 2008. She gave up her dentistry studies in Hungary to come back to help Brian run Home
Farm.
During the next eight years Debbie worked full-time on keeping Home Farm going. She had little
time for a social life, and eventually her fiancé, Simon, became so frustrated that he ended their
relationship. Brian paid Debbie a wage of £20,000 per year until 2016. In November 2016 Brian
suffered a heart attack shortly after learning that all his stock market investments had become
worthless overnight. The next day he gave Debbie the key to the strong box containing the title
deeds of Home Farm. He told her that whilst he could no longer afford to pay her wages she would
be well rewarded if she continued to look after Home Farm because, ‘when I die I will leave
everything to you.’ For the next four years, Debbie ran Home Farm by herself whilst also taking care
of Brian who became increasingly infirm.
In 2019, Annabelle, a local property developer, approached Brian about buying Long Bottom, a
meadow on Home Farm. Annabelle said she wanted Long Bottom to build a small housing estate of
exclusive executive homes. Brian was hesitant at first but Annabelle persuaded him to agree orally
that she could go ahead and obtain the necessary planning permission for 15 houses to be built on
Long Bottom. Brian told her that if she succeeded in getting planning permission he would then
agree to sell her Long Bottom for £750,000 and 2% of the total profit from the sale of the houses.
Last month, Brian died, without leaving a will. His other three children insist Home Farm should be
sold and the proceeds split equally between all four children. Annabelle, who has spent a lot of time
and money obtaining planning permission, wants to enforce the sale of Long Bottom. Debbie
believes Home Farm is hers, and she also does not want Long Bottom sold to Annabelle.
Advise Debbie.
Answer pointers:
Debbie, the only one of Brian’s children to respond to his letter, returned to live at Home Farm in
December 2008. She gave up her dentistry studies in Hungary to come back to help Brian run
Home Farm.
 Respond to the letter (reliance) ; Giving up studies & fiancée (detriment)
During the next eight years Debbie worked full-time on keeping Home Farm going. She had little
time for a social life, and eventually her fiancé, Simon, became so frustrated that he ended their
relationship.
 Gillett v Holt; Thorner v Major – detriment (sacrificed education/career and potential for
other familial relations)
Brian paid Debbie a wage of £20,000 per year until 2016.

 Calculate this towards remedy later.
He gave Debbie the key to the strong box containing the title deeds of Home Farm. He told her
that whilst he could no longer afford to pay her wages she would be well rewarded if she
continued to look after Home Farm because, ‘when I die I will leave everything to you.’ For the
next four years, Debbie ran Home Farm by herself whilst also taking care of Brian who became
increasingly infirm.
 Express assurance – well rewarded - leave everything to you- Gillett v Holt
 Conduct is also demonstrated by leaving strong box containing title deeds of Home Farm-
Thorner v Major
 Looking after an infirm person – Jennings v Rice
 Culliford v Thorpe(2018)- Thorpe looked after Culliford and was promised an equal share in
the Weston Property (owned by Culliford) and, in the absence of a declaration that they
were joint tenants or tenants in common, the appropriate remedial response was to declare
that Mr Thorpe was entitled to a half share in the disputed property
Annabelle the local property developer: Annabelle persuaded him to agree orally to could go
ahead and obtain the necessary planning permission. Brian told her that if she succeeded in
getting planning permission he would then agree to sell her Long Bottom for £750,000 and 2% of
the total profit from the sale of the houses.
Contracts for the sale of land etc to be made by writing, signed and witnessed (signed writing)
 Exception: Section 2(5) LP(MP) Act 1989:… ‘and nothing in this section affects the creation
or operation of resulting, implied or constructive trusts’
Discuss and dismiss Yaxley v Gotts and Kinane v Mackie Conteh
Yaxley v Gotts: The court granted a lease in Yaxley’s favour based on proprietary estoppel even
though the formalities under S.2 LP (MP) Act 1989 was not complied with. Lord Bridge’s test in
Lloyd’s Bank v Rosset is also satisfied.
Kinane v Mackie Conteh –

 Arden LJ explained how a proprietary estoppel could arise in cases where there is an
agreement that does not satisfy section 2(1) LP(MP) Act 1989.
 In the ordinary case, the fact that the parties have not yet satisfied the formalities or have
used the ‘subject to contract’ label is an indication that they do not intend to be bound.
 As stated by Arden LJ in Kinane; ‘Unconscionability on the part of a party seeking to rely on
Section 2(1) is the touchstone giving rise to a constructive trust. It will arise where a party
leads another to believe that he would obtain an interest in property to another and then
stands by while that other party acts to his detriment in reliance on that promise.’
Apply Cobbe v Yeoman Row Management Ltd:
Cobbe v Yeoman Row Management Ltd (2007) - HOL held: No estoppel could be generated by an
oral agreement which had been regarded by both parties as binding in honour only and a formal
agreement was anticipated. For a sale of land, where formalities were expected to be complied with
(Section 2 LP(MP) Act 1989) and the parties did not do so, estoppel cannot enforce the
unenforceable contract.
Also note the Privy Council case of AG of Hong Kong v Humpreys Estate (Queen’s Garden) Ltd- the
Privy Council refused to grant an estoppel where the contract had merely been ‘subject to contract’.
The law must protect a claimant where there is a genuine estoppel, but should not permit estoppel
to be an easy way of avoiding formalities required for conducting dealings with land.
Remedies :
 Basically, the court can award the claimant any proprietary or personal right over the
defendant’s land or provide no substantive remedy at all.
 Guest v Guest (SC)(2022)- Remedy for unconscionability is to enforce the promise rather
than do the minimum to cover the detriment actually suffered. (Note dissenting judgement)
 For Debbie, she could very well obtain the entire property or majority shares in the
property. May not acquire the entire property (depends on the weighing out of her salary
of £20,000.00 per annum),
 For Annabelle – the agreement itself -discuss the unconscionability: she persuaded him to
agree. He did not mislead her. Was the agreement “subject to contract”? Annabelle is a
property developer (should have known better – get the agreement in writing)
 Most likely not entitled to anything OR possibly monetary compensation – unlikely for
her to enforce the agreement to buy Long Bottom for £750,000.00 with a 2% profit.
Protection: Section 116 LRA 2002- Proprietary Estoppel is a proprietary interest in land.
If Debbie had placed a Notice it could bind the rest. If not, her interest can still bind others by
virtue of her actual occupation- Schedule 3 paragraph 2 LRA 2002.
Revision - Registered Land 2021
Question 1
A few months ago in July 2017 Jake decided to purchase Whiteacre from Godfrey.
Whiteacre comprised of a house, a garage and large field. Jake, who is taking an internet course on
law, decided to do the convenyancing work himself and moved into Whiteacre after title was
registered in his name.
In the last few days Jake has noticed Larry, a local farmer, moving sheep into the large field. When
confronted, Larry explained that in January 2013 Godfrey granted him a seven-year lease of the
field.
On the same day, Jake saw Mo, his neighbor letting herself into the garage and removing a
lawnmower. When Jake asked her what she was doing, Mo told him that she bought her house from
Godfrey several years previously. Mo is not sure but she thinks she may have a written document
authorizing her to use the garage to store her lawnmower. She also explained that she stored her
lawnmower in the garage at Whiteacre in exactly the same place that Godfrey had kept his own
lawnmower.
Yesterday, Jake was shocked when Kitty let herself into the house. Kitty, Godfrey’s former partner,
claimed that Whiteacre was still her home. She told Jake she had paid the purchase price when she
and Godfrey acquired Whiteacre. Kitty had been away for the last three months looking after her
infirm mother who died last week. Before purchasing Whiteacre, Jake asked Godfrey about the
women’s clothing he had seen in the large walk-in closet leading off the master bedroom in
Whiteacre. Godfrey said that he was storing them for his former partner.
(a) Advise Jake about what rights, if any Larry, Mo and Kitty have to Whiteacre.
Answer pointers:
 Identify whether the right/interest is established (property/personal).
 Examine the manner in which the right/interest is created (legal/equitable)
 Discuss if the right/interest is properly protected (LRA 2002) (Would it bind a purchaser?)
A) If the rights are Property rights:
B)Legal OR Equitable
C)Protection? –LRA 2002
i)Registered :Section 27 LRA 2002 (Section 1(1) LPA 1925: freehold/leaseholds above 7
years; Section 1(2) LPA 1925: easements/ mortgages)
ii)By registration as a Notice(S.32 LRA 2002) or Restriction(S.43 LRA 2002)
iii)Overriding Interest – Schedule 3 LRA 2002:

para 1(Legal leases for 7 years or below)
para 2(actual occupation)
para 3 (implied legal easements)
Puvanal Sri 1
 Discuss whether Larry, Mo and Kitty’s interest have any priority over Jake.
 Jake a purchaser for valuable consideration (Section 29 LRA 2002)
Larry’s claim to a 7 year lease from January 2013
Property/personal right
 A lease ( Street v Mountford)
Legal OR equitable
 Section 27(2) LRA 2002: Legal lease for 7 years or below does not need registration to exist
or be legal.
 The word “granted’ in the question indicates that the right is given by deed.
 S. 1 LP (MP) Act 1989 should be complied with for the lease to be legal.
 If it did, Larry has a legal lease.
 If Section 1 LP (MP) Act is not complied with then the grant is not valid and Larry doesn’t
have a legal lease.
 Discuss Section 2 LP(MP) Act 1989: possibility of an equitable lease
 If he has a document complying with Section 2 LP (MP) Act 1989 then he has an estate
contract in his favor. It is an equitable lease; Section 1(3) LPA 1925.
Protection
 Legal lease for 7 years and below automatically overrides. Sch 3 para 1 LRA 2002
 If Larry’s lease is legal it will take effect as an overriding interest binding on Jake.
 Equitable lease needs to be registered as a Notice to be protected.

 If his lease was equitable then Larry should have placed a Notice (Section 32 LRA 2002), to
protect his lease.
 If not however, Schedule 3 para 2: actual occupation may assist the interest holder:
o Valid and enforceable property right (estate contract) ;
o Actual occupation (moving sheep into field); Abbey National Building Society v Cann
(1991); Malory Enterprise Ltd v Cheshire (2002)
o Actual occupation discoverable on a reasonable careful inspection of land
o Purchaser had actual knowledge
o If enquiries were made of the right holder and he failed to disclose the interest
“when he could have reasonably been expected to do so”.
 If Larry satisfies the conditions needed for Sch 3 para 2 then he has an overriding interest
binding on Jake
Mo’s right to keep her lawnmower in the garage
Property/personal right:
1) Easement of parking?
 Re Ellenborough Park (1956):
Puvanal Sri 2
o (1)There must be a dominant (benefit) and a servient (burden) tenement;

o (2)An easement must “accommodate” the dominant tenement;
o (3)The dominant and servient owners must be different persons; and
o (4) The right over land cannot amount to an easement, unless it is capable of
forming a subject matter of a grant.
 Easement of parking : Moncrieff v Jamieson
Legal/Equitable & Protection

 If the written document was a deed then it is required to be registered, to be legal and
protected. Section 27 LRA 2002
 If it was only made by deed and not registered: then it would only be equitable, it needs to
be protected as a Notice on the register, Section 32 LRA 2002. It cannot override under
Schedule 3 para 2; Chaudry v Yavuz.
 If a Notice was placed than the interest has priority over Jake.
 Note :Implied legal easement by virtue of Wheeldon v Burrow: Schedule 3 para 3
Bare licence
 If the document doesn’t not comply with any formalities under Section 1 LP(MP) act or
Section 2 LP(MP) Act then it is only a bare licence and Jake can ask Mo to remove the
landmower.
Kitty’s right to Whiteacre
Property OR Personal:
 As the former partner no issue of a spouse’s right arises

 A beneficial interest by virtue of Section 53(2) LPA 1925: Interest arising under resulting,
implied or constructive trust
 Contribution to purchase price: resulting and constructive trust.
Legal OR Equitable:
 Equitable interest only pursuant to Section 53(2) LPA 1925.

 The property is registered in Godfrey’s sole name and an interest of Kitty’s can only be
equitable by virtue of Section 53(2) LPA 1925.
 Godfrey holds the property for himself and Kitty under resulting and/or constructive trust
Protection:
 Discuss and dismiss overreaching: S.2 LPA 1925 ; City of London Building Society v Flegg
1)Restriction – Section 43 LRA 2002

 For the beneficial interest under Section 53(2) LPA 1925
 Exception: Section 33(I)(a)(i) LRA 2002 – A Notice CANNOT be placed for a beneficial
interest under Section 53(2) LPA 1925.
2)Overriding interest – Schedule 3 paragraph 2 LRA 2002

 Jake will be bound by Kitty’s interest if she was in actual occupation.
Puvanal Sri 3
To establish Schedule 3 paragraph 2: actual occupation, certain conditions would have to be

satisfied in order i.e. [(1)+(2)+ (3) + (4) +(5)]
(1) The claimant (Kitty) must have a valid and enforceable property right immediately before the
transfer to the purchaser (Jake).
-National Provincial Bank v Ainsworth;
(2) The claimant has to be in actual occupation of the land over which the right exists.
 William & Glyn’s Bank v Boland
 Abbey National v Cann - actual occupation must be discovered at the time of
disposition/transfer/sale and not at the time of registration.
 Thompson v Foy-There must be actual occupation at the date of disposition i.e the transfer.
 Hoggett v Hoggett- necessary to show that his/her occupation was manifested and
accompanied by a continuing intention to occupy.
 Stockholm Finance v Garden Holdings – Holiday or business trip may still preserve the
notion of actual occupation.
 Link Lending v Bustard- what mattered was the combined manifestation of her occupation,
her continuing intention to occupy and the reason that prevented her from living at home.
 Thompson v Foy- There need to be an element of intention to return to stay
 Kitty was looking after her infirmed mother
(3) The actual occupation needs to be discoverable on a reasonable careful inspection of the land
at the time of disposition. Sch 3 para 2(c)(i) LRA 2002.
-Thomas v Clydesdale Bank- It was the visible signs of occupation which had to be obvious on
inspection.
-Chhokar v Chhokar- Noting that the wife’s furniture was in the house on the date of registration the
Court of Appeal said that it had no difficulty in finding that she was in actual occupation.
> Jake had discovered her clothing’s and made enquiries
(4) Purchaser should have actual knowledge of claimant’s interest at the time of disposition. Sch 3
para 2(c)(ii) LRA 2002.
 This depends on the facts. It is not an objective test.
 Purchaser’s state of mind matters.
 However, if point (3) above is satisfied, then usually point (4) will be satisfied.
(5) If enquiries are made of the claimant’s interest and the claimant does not reveal their interest
then the interest would not override if it is reasonable to disclose. Sch 3 para 2(b) LRA 2002
 Not applicable here as Kitty was not on the property.
 OTF, Kitty was away for only 3 months, looking after her mother. Whiteacre is home, she
had all the necessary intention to return. She had left her clothes there and Jake had asked
Godfrey about this. Actual occupation can be established.
 Jake is advised to buy out her share in Whiteacre.
Puvanal Sri 4
Question 2:
Alastair was the registered owner of Blackacre, he lived there with his long term companion, Nick
and they both contributed to the purchase price. Blackacre is a farm which includes two fields
known as White Field and Gold Field.
Last year:
i)Alastair orally agreed that Stephen could rent White Field for three years for an annual rent of
£1,000
ii)Alastair granted Dawn, by deed, the right to use a shortcut across Gold Field to access the road
from her house
ii)Alastair agreed, in writing, to give Roger the right to purchase Blackacre anytime over the next
decade
Nick went to Tibet for an indefinite period.
Last month Alastair sold Blackacre to Iggy who is now the registered owner of Blackacre. Iggy asked
Stephen to leave White Field and refused Dawn permission to cross Gold Field. Roger now wants to
exercise his option. Nick has now returned to claim what “is rightfully his”. Alastair has disappeared
with the proceeds of the sale. Iggy has asserted that he is not bound by Roger’s option and owes
Nick nothing.
Advise Stephen, Dawn, Roger and Nick.
Answer:
 Identify whether the right/interest is established (property/personal).
 Examine the manner in which the right/interest is created (legal/equitable)
 Discuss if the right/interest is properly protected (LRA 2002) (Would it bind a purchaser?)
A) If the rights are Property rights:
B)Legal OR Equitable
C)Protection? –LRA 2002
i)Registered :Section 27 LRA 2002 (Section 1(1) LPA 1925: freehold/leaseholds above 7
years; Section 1(2) LPA 1925: easements/ mortgages)
ii)By registration as a Notice(S.32 LRA 2002) or Restriction(S.43 LRA 2002)
iii)Overriding Interest – Schedule 3 LRA 2002:

para 1(Legal leases for 7 years or below)
para 2(actual occupation)
para 3 (implied legal easements)
Puvanal Sri 5
This question concerns registered land and each party will be discussed separately.
1)Iggy – purchaser
 Section 29 LRA 2002 & Section 132 LRA 2002
2)Stephan (Alastair orally agreed that Stephen could rent White Field for three years for an annual
rent of £1,000)
 Street v Mountford
 Section 205(1)(xxvii) LPA 1925
Legal OR Equitable:
Legal Lease:
 Creation
 Section 54(2) LPA 1925; Fitzkriston Limited Liability Partnership v Panayi [2008]
 Periodic tenancy for 1 year
 Protection of Stephen’s legal lease for 3 years against Alastair.

 Section 54(2) LPA 1925
 Dismiss Section 33(1)(b) LRA 2002 : Cannot protect short leases below 3 years by Notice
 Overriding interest pursuant to Schedule 3 paragraph 1 LRA 2002.
3)Dawn (Alastair granted Dawn, by deed, the right to use a shortcut across Gold Field to access the
road from her house)
 Easement as laid down in Re Ellenborough Park has to be satisfied. (s.1(2)(a))

 To have a right of way is accepted as an easement. Borman v Griffith; London Bleinheim
Estates v Ladbroke, it is proprietary right and could bind Iggy
Legal OR Equitable?
 S.1 LP(MP) Act 1989(deed) & Section 27(2)(d) LRA 2002: requires the easement to
substantively registered to qualify as a legal easement
 If it was made by deed alone, it would be an equitable easement
Puvanal Sri 6
Protection:
 Legal: Pursuant to Section 27 LRA 2002, which applies after 13 October 2003, an easement
must be registered against the title of the servient tenement and dominant tenement in
order for it to be legal and protected.
 Equitable: Notice :Pursuant to Section 32 LRA 2002

o Chaudhry v Yavuz(2011): cannot override under Sch 3 para 3 nor can actual
occupation be raised under Sch 3 para 2
4)Roger (Alastair agreed, in writing, to give Roger the right to purchase Blackacre anytime over the
next decade)
 Property right : Estate contract complying with formalities.
 Personal right. (Thomas v Sorell; Ashburn Anstalt v Arnold)
Legal OR Equitable:
 An option to purchase is only equitable as stated in 1(3) LPA 1925.
 The agreement must comply with Section 2 LP (MP) Act 1989 ; Walsh v Lonsdale (written,
signed) in order to qualify as an equitable estate contract.
Protection:
 Notice- Section 32 LRA 2002; OR

 Schedule 3 paragraph 2 LRA 2002
 Webb v Pollmount (1966)- LRA 1925
 Options to purchase land are normally ‘minor interests’, and therefore should be protected
by entering a notice on the register. No notice was entered to protect Webb’s option. The
fee simple was sold to Pollmount Ltd, who claimed that the option was not binding on it.
Section 70(1)(g) LRA 1925 - (actual occupation provision under LRA 1925) came to Webb’s
rescue. He was actually occupying the leased property at the time of the sale, therefore his
option was an overriding interest within s. 70(1)(g) LRA 1925.
Nick (Nick has now returned to claim what “is rightfully his”- he contributed to the purchase price)
Property:
1. A beneficial interest by virtue of Section 53(2) LPA 1925: Interest arising under resulting, implied
or constructive trust
Equitable: Section 53(2) LPA 1925: Resulting Trust - a resulting trust – Burns v Burns Implied Trust-
Lloyds Bank v Rosset
Protection:
Puvanal Sri 7
1.Restriction – Section 40 & 43 LRA 2002 – was a restriction placed?
 For the beneficial interest under Section 53(2) LPA 1925
 Section 33(I)(a)(i) LRA 2002 : excludes implied trust
Before discussing OI raise and dismiss, Overreaching
 City of London Building Society v Flegg [1988]

 Two essential conditions must be met before overreaching can occur:
 a) The right must be capable of being overreached - Section 2 of the LPA 1925 -equitable
co-ownership rights existing behind a trust of land
 b) The statutory conditions for overreaching must be fulfilled (Section 2(2) LPA 1925) -
the transaction is made by at least two trustees of land.(legal title)
 When overreaching fails:
2. Overriding interest – Schedule 3 paragraph 2 LRA 2002
 To establish Schedule 3 paragraph 2: actual occupation, certain conditions would have to be

satisfied in order i.e. [(1)+(2)+ (3) + (4) +(5)]
(1) The claimant must have a valid and enforceable property right immediately before the transfer to
the purchaser.
-National Provincial Bank v Ainsworth; Section 53(2) LPA 1925
(2) The claimant has to be in actual occupation of the land over which the right exists.
 This is a question of fact and depend on the case in question.
 William & Glyn’s Bank v Boland-

 Abbey National v Cann
 Thompson v Foy
 Hoggett v Hoggett
 Stockholm Finance v Garden Holdings
 Link Lending v Bustard
(3) The actual occupation needs to be discoverable on a reasonable careful inspection of the land at
the time of disposition. Sch 3 para 2(c)(i) LRA 2002.
 Thomas v Clydesdale Bank

 Chhokar v Chhokar
(4) Purchaser should have actual knowledge of claimant’s interest at the time of disposition. Sch 3
para 2(c)(ii) LRA 2002.
 This depends on the facts. It is not an objective test. Purchaser’s state of mind matters.
 However, if point (3) above is satisfied, then usually point (4) will be satisfied.
(5) If enquiries are made of the claimant’s interest and the claimant does not reveal their interest
Puvanal Sri 8
then the interest would not override if it is reasonable to disclose. Sch 3 para 2(b) LRA 2002
If unregistered land law principles apply
Stephen:
Periodic tenancy- S. 54(2) LPA 1925 = Legal tenancy for a year : Binds purchaser
Dawn:
By deed-S1 LP(MP) Act 1989 = Legal : binds purchaser
Roger:
S. 2 LP(MP) Act 1989: estate contract: =Equitable property right - Land Charge : Class C(iv) LCA
1972. No fall back provision: Midland Bank v Green
Nick:
Equitable: Overreached – failed
Doctrine of Notice- Kingsnorth Finance v Tizard : actual, imputed or constructive notice
Puvanal Sri 9

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Adverse Possession 2021

Grazing cows and storing timber: Treloar v Nute [1976]

Shooting over marsh land: Red House Farms v Catchpole [1977]

When an application to be registered as proprietor is made by Jaclyn

- 1) Estoppel, unconscionability, ought to be registered.

(Check if other exceptions may apply)- 1)some other reason to be registered?

With regard to Jaclyn:

If unregistered land rules apply:

If the 1925 Act registered land rules apply:

Council’s plans for the plot

Previous state of law:

The council’s letter

Buckinghamshire County Council v Moran.

-Assertion by letter insufficient to prevent adverse possession.

LRA 2002 rule

- 1) Estoppel, unconscionability, ought to be registered.

‘Acquiescence’ is both express and implied by acquiescence.

(Check if other exceptions may apply)- 1)some other reason? -

Where an application is made by Jim

1) They may consent- but rare.

If the land was unregistered

Question 2 (UOL Q8, 2023)

Factual possession - The physical acts:

o It is inappropriate to dissect the facts and assess each category of conduct in

o If 12 years has lapsed, Greenshield Energy may be “statute-barred” from bringing a

Advise Carrie as to whether Edmund, Thomas or Frederick might successfully apply to be

1. Requirements of adverse possession – Powell v Mc Farlane: factual possession and intent to

2. Definition of factual possession

 Edmund: living in the house constitutes sufficient factual possession

3. Definition of intent to possess

 must comply with the procedure in Sch 6 LRA 2002

1. Requirements of adverse possession – Powell v Mc Farlane: factual possession and intent to

3. Vegetable patch and wild flowers

4. Interruption of / stopping the clock

5. Definition of intent to possess

7. What Robert must do in order to be successfully registered as the new proprietor:

 Discuss the possibility of Schedule 6 paragraph 5(2) applying

 Sections 34 and 36 of the LPA 1925

(E) [B + C + D] (in equity)

Notice in writing may take many forms:

-Will this affect her share as a joint tenancy?

>Discuss if there was a firm and final/conlusive agreement

Did severance happen? Discuss both possibilities

Section 11(1) TOLATA 1996 : duty to consult

Section 12 TOLATA 1996: right to occupy

Section 14 TOLATA 1996 : Disputes as to sale

Section 15 TOLATA 1996:Factors to consider

Section 15(1)(c): where there are minor in the house.

Section 15(1)(d) : interest of creditors

If Cindy’s (TIC) - interest passed to Frank

If Cindy’s (JT) discussion with Davina did not amount to a severance.

-Discuss resulting trust

-Conditions for a constructive trust to arise:

> Lloyds Bank v Rosset –

1)arrangement, agreement or understanding

Where there is a failure to show any arrangement, agreement or understanding,

Followed Lloyd’s Bank approach:

The Court of Appeal’s decision in Oxley v Hiscock.

Discuss this case.