Property 1

Revision Lecture: April 22, 2025

 Today’s lecture
• Exam format
• Topics we will cover:
• Leases + Joint tenancies
• Covenants
• Adverse Possession
• Easement
• Charities – public benefit and charitable purposes
• Express trusts – 3 certainties
 Exam instructions
• 6 questions
• 3 problem questions
• 3 essay questions
• You must answer 2.
• Any 2 – i.e 2 problem; or 2 essay; or 1 of each.
• Word count: Not less than 700 words per answer.
• Referencing: You don’t need to provide references.
• Time: 3 hours
• Annotated Textbook + Printed notes
• What we look for in an exam answer
• Problem questions:
• Have you identified and zeroed in the correct issue?
• For example, in a problem q about leases – the issue of “is the lease valid” is too broad a question.
You need to zero in on the elements that make up a lease and see if all the criteria are met
• Substantive + formal requirements
• Have you provided the relevant case law/sections?
• Have you engaged deeply with the facts in light of the law?
• Essay questions
• Essay questions are essentially propositions or arguments. Do you agree or disagree? Or do
you have a more nuanced position? Have you cited relevant case law/statutes?
 Leases
• What is a lease?
• An estate in land that is limited by time (leasehold v. freehold).
• What is a license v. lease?
• License is a contractual right. Lease is a property right.
• Elements of a valid lease?
• Exclusive possession, for a definite term, at rent.
• If you don’t have any of these, what do you have?
• What do these terms mean?
• Possession?
• Term?
• Rent?
• Main case?
• Street v. Mountford
 Joint Tenancies
• Joint Tenancies – where two or more people have a leasehold estate
in the same property
• What do parties to claim to have a JT need to show?
• 4 Unities – Possession, Interest, Time and Title (PITT)
• What do each of these terms mean?
• If they do not have a JT, then they are tenants in common and have
only a license to remain on the land.
• Main case?
• Antoniades v. Villiers/AG Securities v. Vaughan
 Leases - formalities
• S52 Law of Property Act 1925 (LPA)
• All conveyances of land.. are void.. unless made by deed.
• Except: “leases… not required … to be made in writing”
• S54 LPA leases three years and under do not require to be by deed
• S1 Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A)
• What is a deed?
• S2 LP(MP)A
• Contracts for conveyance of interest in land. To be made in writing
 Covenants
• What is a covenant?
• promise contained in a deed relating to land, where one
party agrees either to do something (a positive covenant)
or to refrain from doing something (a restrictive covenant)
concerning the use of land.
• This promise becomes a proprietary right
 Benefit and burden: example 1

Owner of house No. 1 promises owner of house No. 2 not to carry on any trade
or business on No.1’s land
o Who has the burden?
o Who enjoys the benefit?
o Person making promise : covenantor (owner of house no.1, where burden lies)
o Person to whom promise is made: covenantee (owner of house no.2, where
benefit lies)
o Which is the dominant and servient tenement in the above example?
 Positive and negative covenants
• Positive covenant: requires owner of burdened land to take some
action on their property or adjoining property, usually requiring the
expenditure of money.
Owner of House no.5 promises to maintain the drain they share in common with
Owner of House no.6
Positive covenants usually do not bind successors
• Negative (restrictive) covenant: require the owner of burdened
land to refrain from some activity on his or her own land.
Owner of house No. 1 promises owner of house No. 2 not to carry on any trade or
business on No.1’s land
 Answering covenant problem
questions
• Draw it out!
• In whatever fact circumstances, if you want to enforce restrictive covenants as
proprietary rights, you need to establish the following things
• That the covenantor’s land bears the burden of the covenant – has the
burden of the covenant passed?
• That the covenantee’s land bears the benefit of the covenant – has the
benefit of the covenant passed?
• There is a duality of benefit & burden
• Both that the benefit of the covenant has run to the claimant and that
the burden has run to the defendant.
 Benefit and burden under
common law
• BENEFIT:
• Between the original parties, the rights are enforceable
• Benefits can pass at common law: sections 56/136 LPA or Contract (Rights of Third Parties) Act
1999
• Implied assignment of covenant P&A Swift Investments v. Combined English Stores Group (1998)
• Express or statutory annexation: Rogers v Hosegood (1900); S. 78 LPA 1925; Federated Homes v
Mill Lodge
• No contrary intention
• Registration- s. 32 LRA 2002
• BURDEN:
• At common law, the burden cannot pass!
Tulk v Moxhay: passing the burden
in Equity
• 1. The covenant must be negative in nature
(restrictive)
• 2. It must touch and concern the land
• 3. It must have been intended to pass with the
land
• 4. The buyer had notice of the covenant
 Adverse Possession
• What is Adverse possession?
• What are the requirements for to establish adverse possession?
• Intention to Possess
• Physical Possession
• Time
• What does the “adverse” in adverse possession mean?
• Duration/Procedures
• If land is unregistered – apply s. 15 and 17 of Limitation Act (i.e. 12 years after PO is dispossessed,
PO’s right to evict and title are extinguished).
• If land is registered under LRA 1925 and the limitation (12 year) period ends before 13 October
2003 – apply s. 15 and 17 Limitation Act + s. 75 LRA 1925.
• Under s. 75 – if AP claim is successful, then PO acts as a trustee for the AP (who is now the
equitable owner of the property. AP can then applied to be the registered owner of the
property. (i.e. the new PO)
• If land is registered and the limitation period extends beyond 13 October 2003 – Apply schedule 6 of
the LRA 2002
 Policy behind Adverse
possession
• Why do you think the law allows for a thing like adverse
possession?
• Encourages people to use their land productively?
• If someone has used someone else’s land for a long period of time,
and the PO hasn’t asserted their rights, then the law wants to
avoid lack of clarity over ownership?
• Punishes inaction?
When you think about these reasons, relate them back to the
substantive and procedural aspects of Adverse possession.
 Easements
• What is an easement?
• A legal right over another person’s land for a specific purpose.
• Two things to look out for in an easement problem question
• Substantive questions: does the easement satisfy the 4 criteria of Re Ellenborough Park
• Mode of Creation
• What are the 4 criteria under Re Ellenborough Park?:
• DADS
• Dominant and servient tenement
• Accommodate the dominant tenement
• Diversity of ownership
• Subject matter of a grant.
 Mode of creation?
• Express legal easement – by deed (s. 52 LPA), registered (s. 27 LRA 2002), equal to an estate in land (s. 1(2) LPA)
• Implied legal easements
• Is the easement created by grant or reservation?
• What are 4 ways and when are they available?
• Necessity – for grant and reservation
• Common Intention – for grant and reservation
• Rule under Wheeldon v. Burrows – for grant only
• A person sells a portion of the land to a buyer. Buyer can claim easement of a prior use by a seller if the
seller used the land (eg. used a path) in a continuous and apparent way, and the use for necessary for the
reasonable enjoyment of the land.
• S. 62 LPA – for grant only
• Upon a conveyance of the property, turns previous licenses/informal use into easements. – prior use,
capable of being an easement.
 Answering Easement Problem
question
• Draw it out!
• Answer the question for each easement separately
• Remember, depending on which right you are evaluating,
the dominant and servient tenements can exchange
places.
 Charities
• What are the two criteria to become a charity?
• Charitable purpose + public benefit.
• Charitable purpose – must fall under one of the heads under s. 3(1) of the Charities
Act, 2011
• Public + Benefit
• Public
• must benefit a sufficient section of the public
• Not a personal nexus to a particular individual.
• Benefit
• Harm v. Benefit (National Anti-vivisection Society v. IRC)
• Benefits must relate directly to charitable purpose.
 Express Trusts – 3 certainties
• What are the three certainties for express trusts? Knight
v. Knight
• Certainty of Intention,
• Subject Matter
• Object
• What do they mean?
• Certainty of Intention - definite intention to create a
binding trust
• Issues: Precatory words and sham devices
 Express Trusts (continued)
• Certainty of subject matter
• Why do you need certainty of subject matter?
• Two different scenarios
• Quantum that beneficiaries receive
• If there is a homogenous mass of property (such as shares), some of which is subject to a trust
• Egs. Gold bars, shares, wine bottles (of same vintage and volume)
• ”I declare two sheep of my flock of sheep shall be held on trust” – which
particular sheep?
• General rule – need to specify which particular parts of property are subject to
trust – known as segregation.
 Express Trusts (continued)
• In Re London Wine (1986)
• Wine company went bankrupt
• Trust imposed on 20 bottles out of a stock of 80 identical bottles
of wine
• Is there a valid trust or not?
• No. The specific bottles need to be identified and
segregated.
 Express Trusts (continued)
• Tangible v. Intangible?
• Hunter v Moss [1994
• Declaration of trust in respect of 50 out of 950 shares
• No need to segregate as shares
• Intangible and identical
• Re Goldcorp [1995]
• Gold trading company - Customers were given certificates of ownership, not the actual
gold bars
• Company went bankrupt
• Customers wanted their gold – was there a trust over the reserves?
• No – tangible asset. Needed to be specifically identified.
 General advice
• Be clear – do not use complicated language
• Cite appropriate case law and statutes
• Stick to word limit
• Structure your answers well: use subheadings, underline,
paragraphs
Good luck!