Examiners’ report 2012
Examiners’ report 2012
LA3003 Land law – Zone A
Introduction
The standard of performance was broadly in line with that achieved in recent years.
Once again it was clear that a number of candidates had memorised legal material.
However, even where this material was relevant there was a huge disparity in the
quality of the way it was used in responding to the question. Some candidates
made use of it in an analytical manner and, where appropriate, demonstrated the
capacity to offer critical assessments of it. However, far too many scripts revealed a
complete lack of understanding either of the legal information stated and/or of the
need to use it to answer the question as set. As has been pointed out in previous
Examination reports the Examination is not designed to test the ability to regurgitate
details about the law. Examiners are looking to assess your understanding of how
the law does or does not work, whether this is shown through the application of law
to a problem scenario, or by your ability to respond to the precise language of an
essay title. It is worth remembering that both problems and essays are invariably
set in the grey areas of the law where alternative arguments exist. These may
sometimes flow from uncertainty in the law relating to, or the facts in, the question.
There is considerable merit in recognising and exploring these ambiguities rather
than glossing over them. It is also valuable if you state any preference you have for
a particular approach or outcome, provided it is reasoned rather than asserted. As
far as problem questions are concerned, you should be wary of inventing new facts,
particularly at the expense of dealing with others that are given. Generally speaking
these will provide more than enough for you to draw upon when framing your
answer. By all means identify any missing information that is material and
significant, for instance if it opens up the possibility of offering different legal advice
on the point. There can be immense value in exhausting plausible avenues in
dispensing advice. This can help in making the answer more comprehensive in its
coverage.
There are a number of other matters which it may help candidates to keep in mind.
It is important to manage your time in the examination efficiently so that you
produce four answers of equal length and calibre. Ensure that you prepare a plan of
your answer before you start writing. Use the planning stage to decide upon a
systematic structure and create an aide memoire whilst you are writing your
answer. It helps if you avoid overly long introductions. With problem questions (but
the same applies to essays) it is important to use the limited time by starting to
respond to the issues right from the outset. Avoid setting down quotations – in
particular do not copy out statutory provisions. These can attract little, if any, credit.
The answer needs to be expressed in your own words. You may, of course,
paraphrase and attribute the views of judges and academics accurately and
incorporate them into your answer. It is essential that you take the utmost care with
your use of English. Poor grammar and spelling can make the meaning of what you
are saying unclear. This may have an adverse impact on the credit your work can
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be given. Finally, you will impress the Examiners if you take as much care as
possible with the presentation of your work. Try to be as neat as you can and
observe conventions of good legal writing, such as underlining case names
(preferably using a ruler/straight edge). If your handwriting is not easy to read then it
may be advisable to consider writing on alternative lines.
Specific comments on questions
Question 1
Some years ago Joe became too infirm to maintain his garden. He took expert
advice and decided to wait until the property market improved before selling
the land. The garden soon became overgrown with weeds. Neil, Joe’s
neighbour, assumed that the garden was abandoned. He therefore put his
lawnmower in Joe’s shed. The shed stands near the boundary between the
two gardens. Neil moved part of the boundary fence two meters into Joe’s
garden to get access to the shed. That winter Neil repaired the leak in the
shed’s roof to protect his lawnmower.
When Neil died last year, his son, Chris, inherited his house and garden.
Chris assumed that the shed was part of his late father’s garden. He
continued to use it, and installed power and water.
Last month, when Joe decided to sell his garden to Lillian, a property
developer, he discovered Chris’s garden tools in the shed and that part of the
boundary fence had been moved.
Advise Joe as to his legal position in respect of each of the following:
(a) the Land Registration Act 2002; and
(b) on the assumption that title to Joe’s property is unregistered.
General remarks
This proved a popular question on adverse possession, in which part (a) focuses on
the post-2003 regime by which a claim may be made against Joe (subject guide
Section 11.3); and part (b) is concerned by Joe’s position where his title is governed
to principles of unregistered title (subject guide Section 11.1). Some candidates
identified and offered a balanced treatment of a range of relevant issues. There was
also evidence that many candidates who attempted the question had a general
awareness of the way in which the law relating to adverse possession has been
radically altered by the Land Registration Act 2002. There were, however, fewer
answers that contained a secure grasp of the details and specific implication of the
new regime.
Law cases, reports and other references the Examiners would expect you to
use
Section 15 and 17 of the Limitations Act 1980; Schedule 6 of the Land Registration
Act 2002; JA Pye (Oxford) Ltd v Graham (2003); Zarb v Parry (2011) (noted on the
VLE in Recent developments 2012, p.11).
Common errors
Misunderstanding the terms and scope of the three narrow categories in para. 5 of
Schedule 6 of the Land Registration Act 2002 by which a claimant may succeed in
gaining registration of title even in the face of the existing registered proprietor’s
objection.
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Examiners’ report 2012
A good answer to this question would…
Contain a systematic and detailed indication of the strengths and weaknesses in the
claims to adverse possession that Joe faces in respect of the shed and the
incorrect/altered boundary together with targeted use of the legislative provisions
applicable both where title to the land is registered and unregistered.
Poor answers to this question…
Contained insufficiently detailed and specific advice on whether or not the squatter’s
acts, individually or cumulatively, might be regarded as satisfying the central
components of a claim to adverse possession (factual possession and intention to
possess) (subject guide Section 11.1.2).
Gave a detailed description of the procedure laid down by the Land Registration by
which applications may be made for registration in place of the registered proprietor.
Added extraneous material about the compatibility of adverse possession and
human rights principles.
Question 2
When Emily loses her job she decides to use her large town house to
generate some income. Emily allows her recently widowed friend, Audrey, to
live in a large spare room. As it means giving up her home Audrey is anxious
to ensure that the arrangement provides her with as much security as
possible. Emily and Audrey sign a document which states that Audrey can
only be asked to leave in the event that she fails to pay the small monthly
charge for the room.
Emily places a notice on the notice board at the local university advertising
the availability of her ground floor extension. The notice describes the
accommodation (which has sitting room with a double bed and a small
bathroom) as suitable for a young couple. Jim and Beatrice visit Emily
together. Emily wrongly assumes they are a couple. She agrees to let them
move in. Beatrice and Jim sign the identical documents which Emily’s son
(who is a law student) drafts. Each is headed “licence agreement” and
provides that Beatrice and Jim will occupy the extension for two years, and
that Emily will supply them with an evening meal every night. Beatrice and
Jim each pays Emily £300 per month. Without Emily’s knowledge, Beatrice
and Jim replace the double bed with their own single beds. After a week they
tell Emily that she need not cook for them because they prefer to eat in the
College refectory.
Emily allows Frank to use a bill board on the side wall of the house to
advertise his new taxi business. They agree that Frank will pay Emily £50 per
week for six months.
Pam is thinking of buying the house from Emily. She is wondering how
Emily’s arrangements with Audrey, Beatrice and Jim, and Frank will affect her
legal position if she goes ahead with the purchase.
Advise Pam.
General remarks
The main focus in this question is on what is required for the creation of a valid
lease. It also tests understanding of the demarcation between leases and licences.
In Audrey’s case the advice should include a consideration of whether her
agreement with Emily contains a sufficiently certain term (subject guide Section
6.1.3; study pack, pp.136–41). Beatrice and Jim will need to establish that they
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jointly enjoy exclusive possession (subject guide Section 6.1.4; study pack,
pp.144–49); and advice to Frank might canvass the possibility that he has a
tenancy rather than a licence. As Pam is the recipient of the advice there is also a
need for it to include an indication of the potential enforceability of all the various
rights that exist in the event that she decided to go ahead with the purchase.
Law cases, reports and other references the Examiners would expect you to
use
Street v Mountford (1985); AG Securities v Vaughan; Antoniades v Villiers (1990);
Prudential Assurance Co Ltd v London Residuary Body (1993); Berrisford v
Mexfield Housing Co-operative (2011).
Common errors
Failing to show a precise appreciation of the most recent developments in relation
to the test of certainty of term in the light of the Supreme Court’s ruling in Berrisford
v Mexfield Housing Co-operative (2011).
Overlooking the need to consider the enforceability of any of the property rights that
might be claimed in the event that Pam decides to buy the house.
A good answer to this question would…
Carefully consider the legal implications of the detailed facts provided, especially
those concerning the arrangements between Emily on the one hand and Beatrice
and Jim on the other to argue if they create a lease or a licence.
Poor answers to this question…
Were limited in their coverage of the different possible legal bases by which the
various claimants may argue they occupy the different parts of Emily’s house.
Question 3
Critically assess the extent to which the current law on both possession and
sale strike an appropriate balance between protecting the respective interests
of the mortgagee and mortgagor.
General remarks
The focus of this mortgages question is the right of possession and remedy of sale
(subject guide Section 10.3; study pack, pp.246–51). Many candidates failed to
follow its instruction to offer a critical assessment of how the law strikes the balance
to which the question refers.
Law cases, reports and other references the Examiners would expect you to
use
Cheltenham and Gloucester v Norgan (1996); Ropalgealach v Barclays Bank
(2000); Horsham Properties v Clarke (2011); Mortgage Services Funding v Palk;
Cuckmere Brick Co v Mutual Finance (1971); ss.91, 101, 103 and 105 of the Law of
Property Act 1925; s.36 of the Administration of Justice Act 1970 (as amended).
Common errors
Dealing with only one of rather than both possession and sale. This drastically
reduced the credit that could be given for the answer.
Introducing extraneous areas of the law of mortgages (such as formalities and the
law that protects the mortgagor’s equity of redemption) – without even attempting to
justify their inclusion.
A good answer to this question would…
Ensure that everything said is explicitly addressed to some specific part of the
question.
Include a reasoned and critical component.
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Examiners’ report 2012
Poor answers to this question…
Presented a general essay that read like a pre-prepared set of notes on the topic
without making any attempt to respond to the specific demands of the question.
Question 4
Shortly after Jules and Patty enter into their civil partnership they purchase a
cottage together. Even though both of them contribute equally towards the
purchase price, title to the cottage is registered in Jules’s sole name. At the
time Patty explains to Jules that she does not want her name to appear on the
land register because she believes that would compromise her privacy. Jules
is understanding and reassures Patty that whatever the land register says the
cottage belongs to them both.
A few years later, Patty’s mother, Bessie, becomes too infirm to live
independently. Jules and Patty ask her to move into the cottage and live with
them. Bessie sells her house and uses the proceeds of sale to pay for an
annex to be built at the back of the cottage into which she moves.
Earlier this year Jules and Patty decide to separate. Before emigrating, Jules
sells the cottage to Ted whilst Patty and Bessie are away visiting family.
When they return to the cottage Ted asks them to leave. Patty and Bessie
refuse.
Advise Ted.
General remarks
A significant number of candidates attempted this question. However, the quality of
the answers varied significantly. Acquisition of beneficial property rights by
constructive trust (and proprietary estoppel) is a fast moving area of judicial activity,
and one which remains in a state of flux (subject guide Section 5.1). Whilst the
advice needs to be rooted in a secure grasp of the central principles and the areas
of uncertainty, the detail must not overwhelm the need for advice to be directed at
giving advice on the specific facts. The advice also has to extend to considering the
dispute of competing priority that arises when Jules sells to Ted (subject guide
Section 5.4; study pack, pp.117–24).
Law cases, reports and other references the Examiners would expect you to
use
There is a wealth of case law that may be relied upon. Perhaps notable candidates
for inclusion are: Lloyds Bank v Rosset (1991); Stack v Dowden (2007); Jones v
Kernott (2010). In addition, when it comes to determining priority answers might
include mention of: Law of Property Act 1925, ss.2 and 27(2); City of London
Building Society v Flegg (1988); Land Registration Act 2002 s.116 and Schedule 3,
para. 2.
Common errors
Failure to consider the consequences of Jules’s failure to satisfy the overreaching
procedure.
A good answer to this question would…
Offer advice throughout that exploits relevant differences in judicial and academic
opinions on the unsettled legal issues.
Poor answers to this question…
Lacked advice-giving, resorting instead to writing lengthy narrative accounts of the
recent developments of the judicial developments on the constructive trust, often in
a way that suggested rote-learning of a pre-prepared essay.
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Question 5
Al, Bob, Cynthia, Derek and Ed contribute unequal amounts when they
purchase a large house to live in together. They are all attending the East End
Acting School. Title to the house is registered in Al, Bob, Cynthia and Derek’s
names. They also execute a declaration that they hold the beneficial estate as
joint tenants for all five of them.
Cynthia becomes engaged to one of her tutors, Jasper. As she plans to leave
the house she agrees to sell her interest to Al. However, when Jasper breaks
the engagement, Cynthia decides to stay in the house, and, with Al’s consent,
the sale does not go ahead.
A year or so later Bob runs into debt paying for private singing and dancing
lessons. He takes out a loan with the Bow Bank. The Bank requires Bob to
charge his interest in the house to secure the loan.
Last year, on his way to class, Derek dies in a motorcycle accident. In his will
he leaves all his property to a charity that supports retired actors. A few
weeks later Ed, who is grief-stricken at Derek’s death, emails the others to tell
them that he wants to sell his interest in the house. Network problems delay
the delivery of the email. In the meantime, Ed telephones the others to say
that he has changed his mind.
Three months ago, Bob defaults on his loan repayments. The Bow Bank now
wants the house to be sold but Bob and the other students want to stay in the
house.
Discuss.
General remarks
This problem question concerns co-ownership and trusts of land. In particular it
depends upon considering some of the methods by which a joint tenancy in equity
may be severed (subject guide Section 5.3; study pack, pp.92–9). The answers
were of varying standard. The question covers a combination of points, some
involving the relatively mechanical application of settled principles (such as the
state of the co-ownership when the five initially acquire the house) whilst other
issues are more open (such as the operation of the judicial discretion in s.15 of the
Trust of Land and Appointment of Trustees Act 1996 (TOLATA 1996); subject guide
Section 5.5; study pack, pp.123–29).
Law cases, reports and other references the Examiners would expect you to
use
Goodman v Gallant (1986); Williams v Hensman (1861); Burgess v Rawnsley
(1975); Kinch v Bullard (1998); Mortgage Corporation v Shaire (2001); Bank of
Ireland Home Mortgages v Bell (2001); First National Bank v Achampong (2003);
Edwards v Lloyds Bank TSB (2004); s.36(2) LPA 1925; TOLATA 1996, ss.14 and 15.
Common errors
Concluding that when the five acquired the house the co-owners held the beneficial
interests as tenants in common, thereby making a consideration of severance pointless.
Poor understanding of the scope and case law surrounding the operation of
Williams v Hensman methods of severance.
Failing to appreciate that Bob had not been declared bankrupt and that the Bow
Bank was therefore secured creditors for the purposes of s.15 of TOLATA 1996.
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Examiners’ report 2012
A good answer to this question would…
Move chronologically through the events to provide well-structured advice on the
possibilities that severance of the beneficial joint tenancy may (or may not) have
taken place.
Engage with the wealth of case law to suggest how the court may use its discretion
in applying the criteria in s.15 of TOLATA 1996 either to order a sale or not.
Question 6
In 2007 Abe bought a set of farm buildings which comprise a farmhouse and
three dilapidated barns: Green Barn, Red Barn, and Yellow Barn. Abe lives in
the farmhouse and converts the three barns into houses. In the yard at the
front of the three barns Abe built a heated swimming pool.
In 2008 Abe sold the three barns. Each sale contained the following terms
requiring the purchaser to:
(i) use the land as a private dwelling;
(ii) maintain the section of hedge separating each barn from the farmhouse;
and
(iii) pay a proportion of the annual cost of running the swimming pool.
In 2012, when Abe sold the farmhouse to Bertha, the three barns had already
been bought and sold several times. When she moved in, Bertha discovered
that Carolyn, the owner of Green Barn, was using it to run her publishing
business. Bertha also noticed that the section of hedge lying between the
farmhouse and Red Barn (owned by Dawn) had blown down. She also learnt
that Edwina, who now owns Yellow Barn, has been regularly using the
swimming pool but last year refused to pay towards a contribution of the cost
of heating it.
Advise Bertha.
General remarks
This is a relatively straightforward question on freehold covenants. The central
concern should be on determining whether the benefit and burden of each of the
covenants has passed when ownership of the land changes hands (subject guide
Sections 9.1 and 9.2). This will establish if Bertha is able to sue for breach of covenant.
Law cases, reports and other references the Examiners would expect you to
use
Tulk v Moxhay (1848); Haywood Rhone v Stephens (1994); Haywood v The Brunswick
Permanent Benefit Building Society (1881); Smith and Snipes Hall Farm Ltd v River
Douglas Catchment Board (1949); Federated Homes Ltd v Mill Lodge Properties Ltd
(1980); Crest Nicholson Residential (South) Ltd v McAllister (2004); Roake v Chada
(1984); Halsall v Brizell (1957); Thamesmead Town Ltd v Allotey (1998).
Common errors
Introducing irrelevancies such as discussing rules relating to leasehold covenants.
A good answer to this question would…
Apply the principles on how the benefit and burden of the various covenants may or
may not have been transmitted to subsequent owners of the dominant and servient
land in a step-by-step way.
Poor answers to this question…
Lacked a logical structure and complete coverage of the issues on transmission of
the benefit and/or burden.
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Question 7
Oliver is the registered proprietor of two neighbouring farms, Greenacre and
Brownlands. Oliver makes daily use of a track and uses a water pipe under
Brownlands. He leases Greenacre to Ed for two years. He (Oliver) also uses
the track over Greenacre to drive his cows to the milking parlour on
Brownlands and the water pipe that runs under Brownlands to provide water
for his cattle on Greenacre. Oliver uses the water pipe in the summer when
the stream on Greenacre runs dry. After Ed moves into Greenacre, Oliver lets
Ed keep his combine harvester in a barn on Brownlands. When the lease
expires Oliver sells Ed the freehold title to Greenacre.
Advise Oliver whether he may continue to use the track on Greenacre and
whether Ed may use the water pipe and barn on Brownlands.
General remarks
This is a relatively straightforward question on whether or not the various rights
Oliver and Ed wish to use can be easements (subject guide Section 8.1.1; study
pack, pp.203–10) and how they may have been impliedly created between the
parties (subject guide Section 8.2.2; study pack, pp.214–22). A number of answers
fell short in providing well-structured and comprehensive advice on the various
issues surrounding each claim.
Law cases, reports and other references the Examiners would expect you to
use
Law of Property Act 1925, s.62; Wheeldon v Burrows (1879); Nickerson v
Barraclough (1980); Stafford v Lee (1993); Re Ellenborough Park; Moncrieff v
Jamieson (2008); London and Blenheim Estates Ltd v Ladbrooke Retail Parks Ltd
(1993); Batchelor v Marlow (2003); Pwllbach Colliery Ltd v Woodman (1915);
Sovmots v Secretary of State for the Environment (1978); Re Webbs Lease (1951).
Common errors
Lacking an explicit application to the facts of one or more of the four characteristics
that indicate that a right is eligible to be an easement to the facts.
Failing to distinguish accurately between when implied grant rather than implied
reservation applies.
A good answer to this question would…
Examine all the legally available methods by which the rights being claimed as an
easement may have been impliedly created, even if in some instances the advice
culminates in dismissing the applicability of a particular method because of the
specific facts in the problem.
Poor answers to this question…
Gave incomplete advice by dealing with the Re Ellenborough Park criteria without
mentioning if and how implied creation might have occurred.
Question 8
“The Land Registration Act 2002 provides that virtually all property interests
affecting title to land should be registered and, therefore, will be found on the
land register. The law should go even further so as to provide that all
interests relating to land must be registered.”
Discuss. (Do not consider adverse possession in your answer)
General remarks
This is a demanding question which relatively few candidates attempted. It requires
a sure grasp of a technical area of law that students commonly finding daunting
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Examiners’ report 2012
(subject guide Sections 3.2 and 3.3; study pack, pp.48-83). The quotation first invites
discussion of the claim that the legislation provides a virtually comprehensive regime
for registration of property interests. It then suggests that the reach of registration
should be extended. This allows consideration of the nature and justification for some
rights being statutorily accorded overriding status even though they are not protected
on the register. The question also makes it clear that answers should not touch the
subject of adverse possession (which features in an earlier question).
Law cases, reports and other references the Examiners would expect you to
use
Of the various provisions of the Land Registration Act 2002 the following are of
particular relevance: ss.27–29, Schedule 3, paras 1–3. In addition, post-2002 case
law that it may be worthwhile to include on the scope of actual occupation include
Thompson v Foy (2009) and Link Lending v Bustard (2010).
Common errors
Introducing barely relevant material – such as the development of land registration
and/or on the provisions of the Land Registration Act 1925 – without justifying its
inclusion.
Confusing principles and cases of unregistered and registered land law.
A good answer to this question would…
Make use of the quotation – its wording and any underlying assumptions – to frame
and direct the answer.
Respond to the second sentence in the quotation that suggests that the law should
provide that all interests relating to land must be registered.
Poor answers to this question…
Offered purely superficial and general descriptions of the scheme of land
registration, often in ways that created the impression that candidates were
regurgitating pre-prepared notes.
Include the provisions in the Land Registration Act 2002 relating to adverse
possession.
