Property II notes

Week 1 – Recap and intro - 2nd October

This week is to recap from the previous year. The tutorial will focus on historical
developments in land law (from LPA 1925 to LCA 1925/1972), on the impact of the changes
in the LCA 1972, and the doctrine of notice.

Dixon chapter 1

- Types of proprietary rights

- Difference between the quality of a legal or equitable interest of a proprietary right
- The consequences of the equitable/legal distinction
- Historical influence of the LPA 1925 and LRA 2002
- Distinction between registered and unregistered land

s1 LPA 1925

Legal estates and equitable interests.

(1)The only estates in land which are capable of subsisting or of being conveyed or
created at law are—

(a)An estate in fee simple absolute in possession;

(b)A term of years absolute.

(2)The only interests or charges in or over land which are capable of subsisting or of being
conveyed or created at law are—

(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in
fee simple absolute in possession or a term of years absolute;

(b)A rentcharge in possession issuing out of or charged on land being either perpetual or
for a term of years absolute;

(c)A charge by way of legal mortgage;

(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1 and any other similar charge on land which

is not created by an instrument;

(e)Rights of entry exercisable over or in respect of a legal term of years absolute, or

annexed, for any purpose, to a legal rentcharge.

(3)All other estates, interests, and charges in or over land take effect as equitable
interests.
 (4)The estates, interests, and charges which under this section are authorised to subsist or
to be conveyed or created at law are (when subsisting or conveyed or created at law) in
this Act referred to as “legal estates,” and have the same incidents as legal estates
subsisting at the commencement of this Act; and the owner of a legal estate is referred to
as “an estate owner” and his legal estate is referred to as his estate.

(5)A legal estate may subsist concurrently with or subject to any other legal estate in the
same land in like manner as it could have done before the commencement of this Act.

(6)A legal estate is not capable of subsisting or of being created in an undivided share in
land or of being held by an infant.

(7)Every power of appointment over, or power to convey or charge land or any interest
therein, whether created by a statute or other instrument or implied by law, and whether
created before or after the commencement of this Act (not being a power vested in a legal
mortgagee or an estate owner in right of his estate and exercisable by him or by another
person in his name and on his behalf), operates only in equity.

(8)Estates, interests, and charges in or over land which are not legal estates are in this Act
referred to as “equitable interests,” and powers which by this Act are to operate in equity
only are in this Act referred to as “equitable powers.”

(9)The provisions in any statute or other instrument requiring land to be conveyed to uses
shall take effect as directions that the land shall (subject to creating or reserving thereout
any legal estate authorised by this Act which may be required) be conveyed to a person of
full age upon the requisite trusts.

(10)The repeal of the Statute of Uses (as amended) does not affect the operation thereof
in regard to dealings taking effect before the commencement of this Act.

City of London Building Soc v Flegg (Lexis headnote)

REGISTRATION OF LAND - REGISTRATION OF TITLE TO LAND -

GENERAL EFFECT OF REGISTRATION - OVERRIDING INTERESTS -
DESIGNATED OVERRIDING INTERESTS - RIGHTS ACQUIRED IN
ACTUAL OCCUPATION OR IN RECEIPT OF RENTS AND PROFITS
THEREIN - ACTUAL OCCUPATION - NECESSITY FOR ACTUAL
OCCUPATION — TRUST FOR SALE — LEGAL CHARGE GRANTED BY
REGISTERED PROPRIETORS — EFFECT OF OVERREACHING
PROVISIONS

A married couple purchased a property, which was conveyed to

them in fee simple upon trust for sale as joint tenants. The wife’s
parents provided a substantial portion of the purchase price so
 that the property was held on trust for all four of them as tenants
in common. The couple charged the property to secure a loan
advanced to them by a building society without the parents’
knowledge. Upon the couple’s default in making mortgage
payments, the society sought possession of the property. The
parents, who were also occupying the property, resisted the
claim. The House of Lords held that the parents’ right to be and
remain in actual occupation of the property had ceased when
their interest had been overreached by the legal charge, except in
so far as their interests had been transferred to the equity of
redemption. Accordingly, the society was entitled to the
possession of the property.

Kingsnorth v Tizard (Lexis headnote)

MORTGAGES - PRIORITY OF MORTGAGEES - FAILURE TO GAIN OR

LOSS OF PRIORITY - BY NOTICE OF PRIOR RIGHT - NOTICE TO
AGENT - EQUITABLE INTEREST — PRIORITY — SPOUSE IN
OCCUPATION — EXTENT OF OCCUPATION NECESSARY —
KNOWLEDGE OF MORTGAGEE’S AGENT — CONSTRUCTIVE NOTICE

In an action by a firm of mortgage brokers to enforce a mortgage

loan against a husband and wife who had separated, the
Chancery Division found that the wife’s contributions to the
property by her finance and labour entitled her to half the equity
in it; that she had not ceased to be in occupation of the property
despite a significant change in her living habits following the
breakdown of the marriage; and that the surveyor’s knowledge of
the marriage was taken to be the mortgage brokers’ knowledge
and they were thus assumed to have knowledge of such equitable
rights as the wife had under s 199(1)(ii)(a) of the Law of Property
Act 1925; accordingly, the mortgage took effect subject to those
rights.
In an action by a firm of mortgage brokers to enforce a mortgage
loan against a husband and wife who had separated, the
Chancery Division found that the wife’s contributions to the
property by her finance and labour entitled her to half the equity
in it; that she had not ceased to be in occupation of the property
despite a significant change in her living habits following the
breakdown of the marriage; and that the surveyor’s knowledge of
the marriage was taken to be the mortgage brokers’ knowledge
and they were thus assumed to have knowledge of such equitable
rights as the wife had under s 199(1)(ii)(a) of the Law of Property
Act 1925; accordingly, the mortgage took effect subject to those
rights.
Week 2 – Conveyancing of Unregistered Land – 9th October
This week looks at conveyancing of unregistered land, looking at the components of
tangibility that become part of the land, and what other interests in the land are at play in a
purchase of land (tenancy, lease, easement, covenant).

s1 LPA 1925 (see above)

s2 LCA 1972

s4 LCA 1972

Midland Bank v Green

Dixon Chapter 3

- Historical overview of unregistered land

- Titles in un reg land
o Third party titles in unreg land
- Legal interests in unregistered land: purchaser protection (LCA 1972)
- Equitable interests in unregistered land: purchaser protection
o Residual class of equitable interests
- Issues with the system of unreg land
- Comparison with reg land

Week 3 – Conveyancing registered Land – 16th October

This week focuses on the conveyancing of registered land, what becomes fixtures of a land
and what is not.

Dixon ch 2

- Title reg as a concept

- Purpose of the system or reg land
- Historical development of system of reg land
- Overview of the Registered land system under the LRA 2002
- Operation of reg land:
o Titles
o Unreg interests with override
o Protected reg interests under LRA 2002
o Overreaching Alteration of the register
- Indemnity under LRA 2002
- Overview of LRA 2002
Land Registration Act 2002, s4, s27, s32, s33, s40, Schedule 3

Week 4 – Co-ownership of Land - 23rd October

This week looks at how a beneficial interest in a land is owned, when there are more owners
in the picture, and what happens when these are disagreements about what to do with the
property.

Dixon ch 4

- Nature and types of co-ownership

- Tennancies:
o Joint tenancy
o Tenancy in common
o How these are distinguished in practice: equitable interests
- The effect of the LPA 1925 on Trusts (…) 1996
- Statutory machinery for co-ownership
- Nature of the unservable legal koint tenancy: trust of land
- Advantages of 1925 and 1996 leg reforms
- Disadvantages of trusts of land as device for regulating co-ownership
- Express & implied creation of co-ownership in practice: trusts
- Severance
Fantini (as executor of the estate of Iris Mary Fantini (deceased) and v Scrutton & Others
(Lexis headnote)

See: [Link]

Week 5 – nothing
Week 6 – Reading week
Week 7 – Trustees Powers & Duties – 13th November
This week we look at what the duties of a trustee are, and what the differences are between
powers and duties especially in the context of investments, maintenance and advancement,
how a trustee can be appointed or removed.

Watt Chapter 9

- Flexibility and benefit – the general scope

- Maintenance of infant beneficiaries
- Advancement
 - Exclusion of the statutory powers of maintenance and advancement

Watt ch 11

- Fulfilling the office of a trustee

- Filling the office of a trustee

- The need to attract trustees

Watt ch 12

- Trustee investment generally

- Goals of trustee investment

- Trustee investment powers

- Types of investment asset

- Trustees’ investment duties

- “standard investment criteria”

- Obtaining and considering proper advice

- The duty to invest fairly

- Specific duties in relation to original investments

- Ethical investment

Trustee Act 1925 (TA25),

Trustee Act 2000 (TA2000)

Trusts of Land and Appointment of Trustees Act (ToLATA)

Week 8 – Breach of Trust & Remedies – 20th November

This week we look at what happens when a trust is breached. The specific types of breaches
are linked to specific duties, and we’ll look closer at fiduciary duties and trust duties.

Watt ch 10

- Fiduciary duties
- Exemplary fiduciary propriety
- Duty of good faith
- Fiduciary relationships and fid duties
o Avoid conflict of interest
o Account for unauthorized profits
Watt ch 13

- Personal liability of trustees

- Liability for breach of trust
- Election between alternative inconsistent remedies
- Defences
- Exemption clauses
- Relief

Boardman v Phipps (Lexis headnote)

Week 9 – Remedies & Tracing – 27th November

This week we will continue with remedies, and look at how property in a trust can allow
choice between a proprietary and personal claim.

Watt ch 14

- Remedies for recovery of trust prop

- Personal remedies in equity
- Common law remedies
- Restitution
- Tracing

Week 10 – Tracing & Remedies against third persons – 4 th

December
This week we continue with remedies, but specifically within the context of third persons and
tracing liability/beneficiaries. We consider the morality and reasons for having tracing, and to
what extent it is part of law of property, evidence, or restitution.

Watt ch 15

- Strangers. Who are they?

- Considerations of policy and practice
- The natue of strancers’ equitable liability
- Trusteeship de son tort
- Personal liability in eq for receipt of trust prop
- Eq liability for assistance in a breach of trust