Examiner’s report 2010

Examiner’s report 2010

266 0003 Land law Zone B

Introduction
The pattern of this Chief Examiner’s Report is as follows.
In the General remarks section you will find observations about the
standard expected and achieved by the cohort who sat this year’s
paper, together with some suggestions on how best to prepare for, and
approach answer to, the examination questions. Although the
suggestions – technical and substantive – are prompted by this year's
answers, it is to be hoped that they can assist future examination
candidates.
In Specific comments on questions, you will find brief
observations on each individual question in turn. However, these
observations should not be taken as prescribing a model answer for the
particular question. Rather, the intention is to identify some of the
common pitfalls and best practice encountered in the examination
scripts. Hopefully, doing so will indicate potential areas for
improvement, both in terms of the content and the techniques that
candidates may find useful in constructing good answers. In this part of
the report you will also find references to relevant parts of the Land
law subject guide and/or other resources available on the Virtual
Learning Environment (VLE).

General remarks
In general, the marks for this year’s cohort of candidates was broadly
comparable with that prevailing in recent years. Some candidates
demonstrated a secure grasp of the principles being tested and an
awareness of productive techniques by which effective answers may be
made, especially to problem questions. However, there is evidence
from the examination answers that there is ample scope for better
practice to be more widespread. Good answers combine a thorough
and detailed knowledge and understanding of the topic with an ability
to engage with either the particular facts of the problem scenario or the
precise terms of the essay title.
As for the legal knowledge, it is important to ensure that you study as
wide a range of primary (cases and statutes) and secondary literature
as possible. Examiners attach a great deal of importance to answers
which go further than provide impressive information about the legal
topic in the abstract. In part, problem questions are designed to test a
candidate’s understanding, assessing his or her ability to apply legal
knowledge through a reasoned exploration of how the law may or may

1
266 0003 Land law Zone B

not apply to the facts. Where there is doubt as to what the law is, or
about its applicability to the specific circumstances, candidates may
also want to add a critical component to their answers, perhaps
advocating a particular solution.
The Examiners continue to be surprised by the number of candidates
whose overall mark suffers either because they attempt too few
questions, and/or because the quality and length of their fourth answer
is far weaker in than the first three. This can have a dramatic impact
on the final mark awarded, sometimes even making the difference
between success and failure. Therefore, you should always keep in
mind the rubric on the examination paper about the number of
questions to be attempted. You should also remember how crucial it
is to manage your time in the examination room.
Moreover, this failure to completely answer enough questions
highlights the importance of using the syllabus (published on the VLE)
when planning a revision strategy, before selecting how many and
which topics to prepare. Like its predecessors, this year’s examination
paper reflected the entire syllabus. Examination questions may
combine aspects of different topics from across the syllabus and the
question paper as a whole may legitimately not include some parts of
the syllabus. It follows that question-spotting is a risky business and
therefore inadvisable. Carefully checking your revision plan against the
syllabus may therefore ensure that you have a sufficient grasp of
enough topics when you enter the examination room so that you will
have no difficulty in being able to answer the requisite number of
questions. You may be in a position to choose which questions to
attempt.
Candidates are ultimately assessed on the quality of the knowledge and
understanding revealed in their answers. However, it is worth
mentioning that presentation also matters. Examinations can, of
course, be stressful experiences for candidates; and Examiners can and
do make some allowance for this when reading scripts. Nonetheless,
Examiners are pleased when candidates take care with important
matters such as neatness and the use of English in the presentation of
their answers. It goes without saying that all candidates must do their
utmost to ensure that their handwriting is legible.

Specific comments on questions

Question 1
Ted, the registered freehold proprietor of Skittles, a bowling alley, entered
into the following arrangements:
(a) Ted signed a written agreement with Mack, a drama student, allowing
Mack to run a hamburger kiosk in Skittles’ entrance lobby without
charge. The agreement stipulated that it was to continue for ‘three years
or until Mark gets his first acting job’. Their agreement also provided for
Ted to retain a key so that Skittles’ cleaners can clean the kiosk between
6.00 and 6.30 am each Tuesday.
(b) Ted told Dulcie, his mother, that she was welcome to use the advertising
hoardings on the roof at Skittles to advertise her neighbouring

2
 Examiner’s report 2010

sportswear business for as long as she wanted. Dulcie paid for the
hoardings to be repaired and upgraded.
(c) Ted agreed to let a vacant stall in Skittles’ car park to James for four
years at an annual rent of £6,000. James started to use the stall for the
sale of popcorn and candy floss and paid Ted £500 a month.
When Ted sold Skittles, the new owner, Richard, planned to demolish the
bowling alley and build a hotel in its place. He therefore asked Mack, Dulcie
and James to leave.
Discuss.
A fairly large number of candidates attempted this question, but with
markedly different degrees of success. A principal cause for this
variation was the extent to which candidates recognized that the
relevant factual information given (and to some extent not given) in
the question is deliberately meant to be open-textured. As such, there
is considerable potential for answers to discuss different possibilities,
both about leases and licences. In addition, the change in Skittle’s
ownership calls for a discussion of questions of priority. However, only
a relatively small number of the better answers considered the
enforceability of any proprietary rights Mack, Dulcie and James may
claim against the new owner, Richard.
In part (a), in addition to discussing the possibility that a lease, rather
than a licence, has or has not been created (including issues about the
Prudential approach to maximum certainty of duration (subject guide,
6.1.3) and exclusive possession (subject guide, 6.1.4)), there is also a
need to discuss whether or not there is a property interest that can be
asserted against Richard’s registered title.
Parts (b) and (c) offer similar scope to plead the existence of personal
and proprietary rights. The better answers to part (b) saw how Dulcie
might seek to make a claim based upon proprietary estoppel, and
discuss how her claim may be satisfied and enforced against Richard’s
registered title (subject guide, 7.2). It is also worth mentioning that, as
in previous years, the Examiners were surprised how many candidates
were unable to analyse the facts and their legal implications in part (c)
accurately and with care. This meant that only the better candidates
recognized that the parties have only entered into an agreement for
a lease, which therefore calls for a consideration of the Walsh v
Lonsdale equitable lease (subject guide, 6.2.2).

Question 2
In 1989 Zeb moved from his farm, Greengate, to live in a nearby village after
all his cattle and sheep were slaughtered as part of a government scheme to
control the spread of foot and mouth disease. Florence, the owner of Hillside,
a neighbouring farm to Greengate, told her friends that she was anxious to
ensure that Greengate did not deteriorate in case Zeb decided he wanted to
return to farming. She therefore let her goats graze the fields on Greengate.
By 1992 Florence had regularly repaired the dry stone walls between
Greengate and the road to stop the goats from escaping. In 1994 she
installed a permanent water supply and built a shed in which to store animal
feed. When Florence died in 1999, her son, Dylan, inherited Hillside. Dylan
continued to graze goats on Greengate land and repair the walls. Zeb sold
Greengate to Macdonald, who asked Dylan to remove his goats.

3
266 0003 Land law Zone B

Advise Dylan on the basis of each of the following alternative assumptions:

(a) title to Greengate is registered; and
(b) title to Greengate is subject to unregistered land law principles
and there had been no sale by Zeb.
This relatively straightforward problem question on adverse possession
proved to be popular. The better answers made full use of the rich case
law examples, and also the detailed factual information in the
question. They applied the key tests of factual possession and intention
(as restated in the leading case of Pye v Graham: subject guide, 11.1.2)
to determine if what is done with Greengate since 1990 might sustain a
claim to adverse possession. For part (a), as some (but not all)
candidates realised, determining the date when Florence may have
begun her adverse possession gives scope for advice on the alternative
prospects of the claim succeeding under the terms of the Land
Registration Act 1925, as opposed to the more limited terms of the
legal regime in the Land Registration Act 2002 (subject guide, 11.2).
As many candidates recognized, there is relatively little to say in
response to part (b). This means it is perfectly acceptable (and even
desirable) to dispose of it by briefly pointed out the importance of
sections 15(1) and 17 of the Limitation Act 1980 (subject guide, 11.1).
By contrast, too few answers dealt explicitly with the impact of Dylan
inheriting from his mother. More worryingly, a number of answers
erroneously introduced an often detailed and irrelevant discussion of
the compatibility of adverse possession rules with the Human Rights
Act 1998.

Question 3
In 2003 Huw and Gemma acquired a holiday cottage, Seabreeze. Although
Huw paid the entire purchase price, title to Seabreeze was transferred to
both of them as beneficial joint tenants.
In 2004 Huw bought a dilapidated Victorian town house, Cartref, to live in
together with Gemma and their son, Lewis. Title to Cartref was registered in
Huw’s name. Huw paid the deposit, and the balance of the purchase price
was raised by way of mortgage with the Principality Bank. The mortgage
repayments were paid from Huw and Gemma’s joint bank account, into which
Huw’s earnings as a plastic surgeon were paid. Gemma stayed at home to
look after Lewis who has severe mobility problems. She also carried out
extensive home improvements and supervised the builders who were
employed to adapt Cartref for Lewis’s benefit.
Last year, when Gemma was staying with Lewis at Seabreeze she received a
post card from Huw telling her he wanted both properties sold because he
was leaving her to set up home with his colleague, Iris. Gemma seeks advice
on:
(a) what, if any, interest she has in Cartref and Seabreeze; and
(b) whether there is any legal basis for her to resist the sale of Cartref.
Advise Gemma.
A large number of candidates chose to answer this question; and some
answers were impressive. Most, but not all, answers adopted the
sensible structure explicitly identified in the question by offering advice
on (a) and (b) in turn. Surprisingly, a noticeable minority of

4
 Examiner’s report 2010

candidates ignored the rubric and wrote more generally – never a wise
or productive approach in responding to problem questions. The better
answers were also careful to keep precisely to the terms of the rubric in
part (b), resisting the temptation to broaden the advice to consider
how Gemma may legally resist any proposal to sell Seabreeze.
Confining answers to the questions asked is obviously important.
Besides, as set, the question contains plenty of relevant matters upon
which to give advice to Gemma. These include: discussing the basis
upon which she may make a claim to a beneficial interest to Cartref,
and the elements required for such a claim to succeed – all of which
inevitably requires considering the case law surrounding Stack v
Dowden (subject guide, 5.2.2). The question also calls for advice on the
operation of the court’s jurisdiction, under sections 14 and 15 of
TOLATA, to determine the co-owner’s dispute as to the sale of Cartref
(subject guide, 5.5). The better answers were alive to the need to
consider a point overlooked by many – the potential for Huw’s postcard
to effect severance (subject guide, 5.3) of the equitable joint tenancy.

Question 4
‘The law governing forfeiture for breach of covenant provides a drastic
remedy that unduly favours landlords and is therefore in need of reform.’
Discuss.
On the whole, answers to this essay question proved to be
disappointing for a several reasons. First, a number of candidates wrote
about leases in general with, at most, merely a passing reference to
forfeiture. Such misjudgments make it very difficult to give much, if
any, credit for what is written. Second, even where the content of
answers were confined to discussing relevant material, the level of
knowledge about the current law (subject guide, 6.3) and the repeated
calls for its reform (subject guide, 6.3.4) was extremely limited and
superficial. Third, all too often, relevantly focused answers might have
been improved if care had been taken to shape the answer by reference
to the precise terms of the quotation. It is important to engage with the
question throughout by responding to the quotation. Undoubtedly, the
language in the quotation gives the better candidates an opportunity to
frame the agenda. In so doing, it may help to draw upon key words in
the quotation and/or to agree or disagree with the propositions the
quotation explicitly (or implicitly) contains.

Question 5
Lilly obtained a loan by way of legal mortgage from the Felpesham Bank
using the registered title to her house, The Grange, as security. One term of
the mortgage stipulated that the amount of interest to be paid would be
doubled in any month in which the sum Lilly borrowed exceeded the market
value of The Grange. On the first occasion this happened Lilly was unable to
make the monthly payments due under the mortgage. As a result the
Felpesham Bank repossessed The Grange before selling it privately to Kylie,
the sister of the branch manager. Lilly discovered that a similar property in
the neighbourhood was sold a month later at auction for a higher price than
Kylie paid for The Grange.

5
266 0003 Land law Zone B

The Felpesham Bank has now written to Lilly to tell her that, as the sale of
The Grange did not realise enough money to repay the loan, she must
account for the difference.
Advise Lilly.
How would your advice differ if, when the Felpesham Bank had sought to
repossess The Grange, Lilly had wanted to stay there to arrange a private
sale?
Quite a few candidates opted to tackle this mortgages problem
question and there were some creditable responses. However, some
answers might have achieved higher marks if greater care had been
taken in the explicit application of the legal principles and cases
mentioned to the specific facts. It is never sufficient to simply state the
law, even if the law stated is relevant.
Overall, advice to Lilly needs to cover the validity of the term about the
amount of interest (subject guide, 10.2.3), and the law governing
possession and sale (subject guide, 10.3). The law and facts raise
plenty of challenging issues for advice on these matters. Therefore
there is no need to include any preamble concerning the history and
nature of the mortgage or the proper legal requirements for its
creation. This is redundant, wasteful, and represents an example of
poor technique. The more successful answers rightly responded from
the outset and throughout by engaging with the specific facts in the
problem’s narrative and the legal issues that flow from them.

Question 6
Tom decided to build two houses on a plot of land of which he was the
registered proprietor. He completed the first house, Oaktree, and decided to
live there. When Tom finished building the second house, Yewtree, he leased
it by deed to Ed for six months.
A little while after moving in to Yewtree, Ed sunk pipes beneath the soil of
Oaktree’s garden. This was the least expensive and most direct route by
which the gas supply could be carried from the main road to Yewtree. Tom
did not mind because Ed agreed that Tom could keep his van in the garage
belonging to Yewtree. Tom also continued to use Yewtree’s garden as a
shortcut to the nearby river to go fishing.
In February 2010 Tom granted Ed a new lease for six years of Yewtree; soon
afterwards they had a furious row when Ed asked Tom to stop using his
garden as a shortcut to the river. Tom wrote to Ed demanding that Ed
remove the gas pipe from Oaktree. Ed responded by ordering Tom to remove
his van from the garage at Yewtree.
Advise Ed.
How would your advice to Ed be different if, after entering into the six-year
lease, Tom had sold Oaktree to Mike, and Mike had asked Ed to remove the
gas pipe from the garden at Oaktree?
This problem question about easements attracted a mixed quality of
response. Some answers suffered because they did little more than
rehearse the traditional common law requirements for determining if
the rights claimed might be eligible to be created as easements. To
their credit, better answers went beyond this, not least in recognizing
the importance of applying the Re Ellenborough Park criteria (subject
guide, 8.1.1) to test each of the rights claimed in turn. In doing this,

6
 Examiner’s report 2010

some answers successfully displayed an up-to-date appreciation of the

contested nature of some claims, including the judicial disagreement
about when parking rights may qualify as an easement.
Having disposed of eligibility, better answers also properly moved on
to offer Ed advice about his prospects of establishing how those rights
capable of being created as easements may have been impliedly
created as easements. This entails arguments about the rights he
wishes to continue to assert as well as those he may have created in
favour of Tom. Candidates are reminded that it is pivotal in such
discussions to be able to show, when relevant, an awareness of the
distinction between implied reservation and grant because there are
fewer legal grounds available to claims to implied reservation (subject
guide, 8.2.2). With arguments about the implied grant of rights in
favour of Ed, the better candidates were able to identify that, on the
orthodox view, section 62 and Wheeldon v Burrows do not overlap in
their application.
Finally the last part of the question gives candidates scope to advise on
issues of priority in registered land (including the operation of so-
called overriding interest). This involves considering the continued
enforceability of easements between Ed and Mike, the new owner of
Oaktree.

Question 7
Brian sold Greenfield, part of Ambridge Farm (title to which is registered), to
Adam. Adam covenanted to use Greenfield exclusively to grow fruit bushes,
and also to prevent the ditch between Greenfield and Ambridge Farm from
flooding. Both covenants were expressed to be ‘for the benefit of the land
retained by Brian’ and the covenant about growing fruit bushes expressly
stated that it was made for Brian’s personal benefit.
Brian sold Ambridge Farm to Matt, who later sold it to Oliver. When Adam
died, his will left Greenfield to Ian.
Oliver has objected to Ian’s plans to cut down the fruit bushes and to build a
restaurant on the land. He is also concerned that the walls of the ditch have
fallen into disrepair, increasing the risk that Ambridge Farm may suffer flood
damage.
Advise Oliver.
This relatively straightforward freehold covenants question proved to
be quite a popular choice with candidates (although some candidates
wrongly diagnosed it as being about leasehold covenants). It involves
dealing in turn with the benefit and the burden of the covenants,
applying the law to determine how, on the facts, each may or may not
have been transferred with the change in ownership of both the land
that benefits, and also that which is burdened, by the covenants. This
will determine if Oliver, a successor in title (via Matt) to the land
originally owned by the covenantee, Brian, may bring a claim for
breach of covenant against Ian, who has inherited the title to the
burdened land (subject guide, 9.1-9.3).
As the better candidates recognized, an important part of the advice
will be about the equitable principles relating to methods by which the
benefit may pass when the benefited land is sold, annexation and

7
266 0003 Land law Zone B

assignment. The facts do not, as some thought, legitimately allow for

an exploration of enforcement through the local law which may apply
within a scheme of development. The better answers also rightly paid
close attention to the legally significant details provided by the facts.
This included exploiting the specific generic description of the land in
the covenant (as quoted in the question), and the covenant’s express
limitation of the benefit of the covenant about growing fruit bushes as
personal to Brian. Both points may be explored by reference to the
reasoning of the Court of Appeal in Crest Nicholson Residential South
Ltd v McAllister (subject guide, 9.2.2).

Question 8
‘Any legal regime that allows property rights to take effect without the need
for them to be registered must ensure that such rights are discoverable and
limited in number and scope. The provisions of the Land Registration Act
2002 do not fulfil these aspirations.’
Discuss.
This question about the current land registration provisions in the Land
Registration Act 2002 (subject guide, chapter 3) was not chosen by
many candidates. The better answers realized that it invites arguments
about matters such as the circumstances and extent to which the
legislative regime does and should allow rights to override a
disposition, even though they have not been registered or protected on
the register. There is also scope for answers to explore the way the
most recent legislation may or may not cater for the prospective
purchaser’s need to be able to discover rights that operate outside the
terms of the register. The better answers attempted to dissect the
language of the quotation, and strived to endorse and/or take issue
with the contentions contained in the quotation.
Typically, candidates resorted instead to reproducing what they knew
about land registration in general, without discrimination or any
relevant direction (sometimes answers even strayed in to wholly
irrelevant areas – including adverse possession, which itself is covered
by question 2). Not only is regurgitation poor technique, the content of
many such answers fell short, by containing partial, superficial and
inaccurate narrative accounts about the Land Registration Act 2002.
Moreover, only the better answers managed to write without confusing
registered and unregistered land ideas and rules. All this created an
impression that too many candidates who chose this question had
acquired limited, if any, understanding of the mechanics and objectives
of the current legislative framework about registered title and how it
provides for the protection of competing property interests.