Land law

Examination papers
and Examiners’ reports

2002, 2003, 2004

LLB 2660003
BSc Accounting with Law/Law with Accounting 2770203
BSc Management with Law/Law with Management 2770203
Land law

Examiner’s report 2004

Zone A

General remarks
Examiners were encouraged by the way in which candidates had come to
grips with the new LRA while at the same time understanding the regime
that it replaced. It is obviously important to keep abreast of developments,
both statutory and case-law. This year candidates tended to shy away from
the essay questions and many of the answers to those questions were general
and unfocused and sometimes totally irrelevant. Answers to the problem
questions were of a higher standard, though even here candidates sometimes
failed to read the question carefully (e.g. question 6). In those questions
where the facts are unclear or the law is uncertain (e.g. the proprietary
estoppel and lease/licence questions) it is perfectly acceptable for candidates
to reach tentative conclusions. There may not be a right or wrong answer,
and examiners are interested, rather, in the quality of the reasoning. Finally,
it is important that candidates structure their answers in a logical fashion.
(See comments on Questions 6 and 8 below.)

Question 1
Some candidates saw this question as an opportunity to discuss land
registration and the 2002 reforms in a rather general way. What was needed,
however, was a focused examination of the ways in which the 2002 Act
applies the ‘mirror principle’ in a more rigorous manner than its 1925
predecessor, by significantly reducing the category of overriding interests
(interests that override). In particular, candidates were expected to consider
in some detail Schedule 3 para 1 (legal leases), para 2 (interests of persons in
actual occupation) and para 3 (easements), as well as the ways in which the
rights of adverse possessors pose less of a threat to purchasers today. Some
categories of overriding interest have been abolished altogether, while others
will be deleted after ten years. The Act also encourages the entry of
overriding interests on the register (see s 71), as a number of candidates
sensibly pointed out. A first-class answer would have assessed the extent to
which the Act has struck the right balance in this area and whether more
radical changes are called for. On the whole, answers to this question were
quite good, if a little superficial.

Question 2
A popular question, which was generally well done. One possibility was
that George had made an outright gift of the proceeds of sale of his flat
(after all he had promised Rose the flat) and that he occupied the house as
a bare licensee. This gives him little protection and he is therefore better
advised to argue that he has an interest in the house arising either from a
resulting trust, a constructive trust, or from the doctrine of proprietary
estoppel. While each of these possibilities needed to be discussed, the lack

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of any clear information about what the parties intended or agreed made it
difficult to reach any firm conclusion. Although the conditions necessary
for a resulting or constructive trust to arise have been discussed in
numerous cases (e.g. Rosset, Midland Bank v Cooke, Lefoe and, recently,
Oxley v Hiscock), uncertainties persist. The possibility of a trust in George’s
favour does exist, but he is more likely to succeed in a claim based on
proprietary estoppel, and even here he might still have difficulty showing
assurance, reliance and detriment. If he was successful, the question of
remedy would still remain, an issue often omitted by candidates. Many
cases deal with this issue, and the case of Baker v Baker, in particular,
where the facts were similar to those in the question, makes it clear that
the remedy will not exceed the value of George’s expectation (where, as
here, both the facts of a problem and the applicable law are not altogether
clear, candidates are not expected to reach a definitive conclusion).

Question 3
This question raised two major issues. One concerned the rights and
remedies of the mortgagee and the other concerned the nature and extent
of Mrs Smith’s interest in the house. Many candidates concentrated on one
of these issues to the exclusion of the other and, in so doing, they lost
marks of course. Candidates should have started by considering the
mortgagee’s right to take possession of the mortgaged property and, in
particular, the court’s discretion under section 36 of the Administration of
Justice Act 1970. If there is a trust of land and an application is made to the
court under section 14 of TLATA, there are several factors set out in section
15 for the court to take into account. Candidates should then have
considered, in the context of the abundant case-law, the duties of the
selling mortgagee in relation to the timing and conduct of sale. Section 105
of the LPA 1925 provides for the application of the proceeds of sale, but
candidates were also expected to consider whether Mrs Smith’s interest in
the house, if any, took priority over the mortgage. It would seem that she
had an interest by virtue of the contribution of her share of the wedding
present to the purchase of the house (query whether her expenditure on
the bills and the tennis-court would give her an increased share?), but that
the mortgage took priority (see the discussion of scintilla temporis in
Cann).

Question 4
This was a fairly straightforward question on the lease/licence distinction
and it was generally well done, though many candidates gave inadequate
attention to Slingsby’s position. Street v Mountford provides a convenient
starting-point. Firstly, was there exclusive possession? Did Boffin have the
right to exclude the whole world from the cottage? If so, was there
certainty of term? Was there a lease for life or a periodic tenancy? Was the
arrangement one of friendship and generosity which negatived any
intention to create a tenancy? If Boffin was not a tenant, was he a bare
licensee or was his licence supported by a contract or an estoppel? Finally,
candidates were expected to discuss whether Slingsby would be bound by
any rights that Boffin might have, given that he has taken the land
expressly subject to them. The LRA 2002 would presumably govern the
matter.

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Land law

Question 5
This question was generally not well done. Too many candidates simply
discussed restrictive covenants in a general way and produced largely
irrelevant answers. Candidates were expected to set out the equitable rules
relating to the passing of the benefit of restrictive covenants, indicating
how these rules had been relaxed in recent years. There are three ways in
which the benefit may pass: by annexation, by assignment and by way of a
building scheme. In addition the covenant must touch and concern the
land. Cases illustrating this ‘relaxation’ include Federated Homes
(annexation), Newton Abbot (assignment) and Re Dolphin’s Conveyance
(building scheme). A good answer would go on to consider whether this
development was to be welcomed or whether it prejudiced unfairly the
purchaser of the burdened land.

Question 6
This question was generally not well done. Some candidates treated it as a
question on freehold covenants and others applied the old, pre-Landlord
and Tenant (Covenants) Act 1995, law. As the lease was granted in 1996,
there was no need to discuss the former law. One serious and very common
mistake was for candidates to assume that Lionel had assigned the
reversion on the Redacre lease to Rose, when the question simply stated
that he sold Greenacre to Rose. So it is Lionel who can recover rent from
Terry (rent due pre-assignment) and from Alan (rent due post assignment); i.e.
when Terry assigns the lease to Alan, Terry is released from the covenant to
pay rent (s 5), and the burden of the covenant passes to Alan (s 3).
Similarly, the burden of the building covenant passes to Alan. However,
although Stan is not an assignee, Lionel may be able to enforce the building
covenant directly against him under the doctrine of restrictive covenants.
Whether Rose is bound by the building covenant in relation to Greenacre is
not governed by LTCA (Rose is a purchaser of the freehold) but by the
doctrine of restrictive covenants (see Oceanic Village v United Attractions).

Question 7
A good answer to this question would start by asking when Andrew entered
into adverse possession of Blackberry Cottage. It would consider, in the
light of the abundant case-law (Powell v McFarlane; Bucks CC v Moran; Pye
v Graham), what it means to enter into factual possession with the
necessary intention to possess. Assuming that adverse possession starts in
1990, the 12-year limitation period is completed in 2002 (Pam’s letter does
not stop time running). The LRA 2002 would not affect Andrew’s right to
be registered as proprietor of the cottage, though the former LRA s 75 trust
is abolished. (See LRA 2002 Schedule 12 para 18.) However, assuming that
adverse possession started in 1992, Andrew’s position would be much
weaker, as it would be governed by Schedule 6 of the 2002 Act, under
which notice of Andrew’s application to be registered would be given to
Pam, who may object. While candidates, on the whole, dealt satisfactorily
with the registered land position, they dealt less well with the unregistered
land position, which has been unaffected by the LRA 2002. The effect of 12
years adverse possession of unregistered land is simply that the paper
owner’s title is extinguished (LRA s 17).

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Question 8
A good answer to this question would start by asking whether the rights
claimed are capable of existing as easements. (If not, they appear to be
mere licences that can be revoked at will.) If any of them are capable of
being easements, the question then arises as to whether they have been
acquired by the claimant. On the former question candidates usually
started by considering the various conditions set out by the CA in
Ellenborough Park. In relation to the garage the question arises as to the
extent to which the law recognises an easement of parking/storage. The
case-law suggests that the answer depends on the extent to which the
claim leaves the ‘servient’ owner without any reasonable use for his land or
makes his rights illusory. Assuming that Bob’s use is not so extensive (the
facts are vague), the 2000 conveyance of Pink House to Bob could have
operated to convert his licence to store into an easement (LPA 1925
s 62, Wright v Macadam). The benefit and burden of the easement would
pass on the 2002 sales of both houses. The question then arises whether
the right to cross into the garden to use the pool can exist as an easement.
Does it accommodate the dominant tenement or is it a right of ‘mere
recreation and amusement’? Even if it can be an easement, has it been
acquired? (The permission seems to have been given after the 2000
conveyance.) Finally, it is doubtful whether the right to maintain the aerial
could be an easement (see Hunter v Canary Wharf) and, even if it could,
whether it has been acquired (prescription? implied reservation?).