Examiners’ report 2013
Examiners’ report 2013
LA3003 Land law – Zone A
Introduction
Land law is often described as ‘dull and difficult’, but although the common law
property lawyers’ preoccupation with abstractions (e.g. estates and interests, legal
and equitable rights, easements and restrictive covenants, etc.) can often confound
the beginner, there is no justification for such a charge. Land law is, in truth, a
fascinating and intellectually rigorous subject, the study of which will hone your legal
skills and powers of analysis even if you have no intention of ever conveying a
piece of legal estate or granting a demise.
To excel in the subject you need to be able to manipulate concepts and rules that
have been honed over something like a millennium; but candidates often fail to do
themselves justice because of some quite basic errors in technique. Consequently,
before turning to the substance of the examination, I would ask you to consider the
following generic points, as I genuinely believe heeding this advice will help you
better achieve your true potential in this subject.
• Poor handwriting – consider writing on alternate lines if you do not have
neat writing.
• Poor grammar and spelling – language is the lawyer’s tool and unless
you learn to express yourself clearly and unambiguously you are bound to
underachieve. Whether English is, or is not, your first language you can still hone
your skills before the examination by reading articles and cases while listening to
English language broadcasts and recordings on TV, radio and the internet.
• Avoid waffle – too many candidates still seem to think that reciting rote
learnt bookwork in the general area of the question will get them marks – it does
not. Focus on the question asked, and the issues raised, throughout your essay.
• Avoid overlong introductions – start addressing issues from the outset in
both essays and problem questions.
• Avoid repetitive conclusions – there is little point just repeating what you
have said in your essay! Here is your chance to reflect on what went before by
commenting on the law you have applied or the views you have considered. It might
sound counter-intuitive, but say something new in your conclusion – this is an
examination answer, not a scholarly article, and you should not waste time
repeating yourself.
• Never quote chunks out of the statute book – we know you have it with
you in the examination and give no marks for accurate copying!
• Do not simply litter your answer with numerous case names – say just
enough (i.e. a line) about the facts and judgment(s) to illustrate why you think a
case is relevant. This shows the Examiner you have read the case and have an
opinion concerning it and its relevance.
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• Avoid inventing new facts in problems – there is more than enough to
say in the examination already and you should be careful not to add to the
complexity – although that should not preclude you pointing out where a critical fact
has not been revealed and explaining why that is significant.
• Avoid ambivalence – both problems and essays are invariably set in the
grey areas of the law where alternative arguments exist, but that should not prevent
you reaching a conclusion after considering the merits of the various approaches
and explaining why you favour one over the other(s).
• Do not be frightened by ambiguity – a single judgment will often have a
number of possible ratios on which jurists might well disagree, while those problems
multiply where there is more than one judgment in a case. Do not ignore this
complexity but make reference to it. The same is even true of statutes, on occasion,
and likewise juristic writings.
• Make sure you divide up your time sensibly and spend as long on
your last question as on your first – it is much easier to get the first marks on a
question than the last and consequently time spent perfecting your initial answer is
counter-productive if you eat into the time you should be spending on your last
answer.
• Never question the facts in a problem – nor speculate on whether they
can be proved. Think of yourself as a judge sitting in the Court of Appeal writing a
judgment that has come to you in case stated form. You are there to apply the law
to the given facts, willing to reject first instance decisions, overturn Court of Appeal
precedents and, although nominally bound by House of Lords/Supreme Court
decisions, still able to criticise or distinguish them. You can of course say that the
facts are insufficient to come to a final verdict although apply the law to the facts
that you do know.
• Finally, know the law (in so far as it is known), know the arguments (in
so far as there is doubt over what the law is or should be) and know what you
think – make sure you include your own opinion (although not exclusively and after
giving due weight, but not undue deference, to case law and juristic writings).
I hope that gives you a flavour of what we are looking for in the examination. Please
remember your role is to offer a critique of the law you are applying and
commenting upon. We want to see evidence that you have engaged with our
subject; for the academic study of law at a leading institution, such as the University
of London, is not about the simple recitation of knowledge but the application of it,
to both problems and essays. Ultimately, we want you to engage with us in a
debate on the law – what’s good, what’s bad and what’s indifferent.
Specific comments on questions
Question 1
“The Land Registration Act 2002 makes it much more difficult for an owner of
land to lose title to a squatter. Most commentators assume this to be a good
thing but only time will tell whether this actually represents an improvement
on the previous system governing adverse possession of registered titles.”
Discuss.
General remarks
This was an attempt to elicit more than just a ‘write all you know’ answer but very
few candidates took the opportunity to comment on the 2002 reform. Most chose
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not offer any opinion whatsoever, while those that did seemed to assume that
making it harder to lose title to a squatter was necessarily an improvement. There
is, of course, nothing wrong with being in favour of the reform but what we were
looking for was a critical response (be that positive or negative) analysing the new
system governing adverse possession in registered land. Candidates might have
taken a doctrinal, historical, comparative or practical approach to the issues raised
and could have achieved first class marks by focusing on any one of these strands.
Law cases, reports and other references the Examiners would expect you to
use
Pye v Graham (HL & ECHR), Buckingham Council v Moran, Law Commission
Report No.271.
Common errors
The biggest single failing was candidates’ reluctance to say what they think of the
reform and why. Too many did little more than outline the procedure and seemed to
assume that would be enough.
A good answer to this question wouldo
Briefly outline the major changes to Adverse Possession under the LRA 2002
before considering the fundamental conceptual shift it arguably represents; from a
system of title still rooted in possession to one where entitlement is determined
solely by registration. Better answers might go beyond the doctrinal to consider the
potential costs and benefits of this reform. Will any solicitor advise their client to
make an application knowing that this will set in train a process likely to lead to the
squatters’ removal? Will the reforms suffer the same fate as under the Torrens
system, where an attempt to end Adverse Possession was abandoned after the
registered and de facto title began to decouple absent the remorseless corrective
imperative once provided by s.75 LRA in our jurisdiction. Or, alternatively, is this a
price worth paying to deal with the supposed injustice of squatters acquiring an
impregnable title via a mechanism that, despite the rhetoric of theorists, has little to
do with utilitarian philosophy and/or economic efficiency, but simply provided a
means of curing defects in unregistered title which, as Bingham noted in Pye v
Graham, is simply not required under a system of registration of title.
Poor answers to this question…
Simply talked about Adverse Possession in general, not even focusing on the rules
that apply in registered land. Those that did often showed little grasp of the details
of the reform or how, and in what circumstances, it changed the previous regime
governed by s.75 LRA 1925.
Question 2
Alastair was the registered owner of Blackacre, he lived there with his long
term companion, Nick, and they both contributed to the purchase price.
Blackacre is a farm which includes two fields known as White Field and Gold
Field.
Last year:
i) Alastair orally agreed that Stephen could rent White Field for
three years for an annual rent of £1,000.
ii) Alastair granted Dawn, by deed, the right to use a shortcut
across Gold Field to access the road from her house.
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iii) Alastair agreed, in writing, to give Roger the right to purchase
Blackacre anytime over the next decade.
iv) Nick went to Tibet for an indefinite period.
Last month Alastair sold Blackacre to Iggy who is now the registered owner
of Blackacre. Iggy asked Stephen to leave White Field and refused Dawn
permission to cross Gold Field. Roger now wants to exercise his option. Nick
has now returned to claim what “is rightfully his”. Alastair has disappeared
with the proceeds of the sale. Iggy has asserted that he is not bound by
Roger’s option and owes Nick nothing.
(a) Advise Stephen, Dawn, Roger and Nick.
(b) Explain briefly how, if at all, your advice would differ if all the above
transactions were governed solely by the rules pertaining to
unregistered title.
General remarks
This is a technical question on the mechanisms that operate in registered and
unregistered titles regarding the protection of third party interests.
i) Stephen
Reg Title – Provided this is a legal lease (e.g. fulfils all the requirements of s.54
LPA) this is an overriding interest under Schedule 3 para.1 which binds Iggy.
Unreg Title – Legal rights bind the world.
ii) Dawn
Reg Title – Although granted by deed the easement needs to be substantively
registered to be legal (s.27 LRA 2002) and binding. If not substantively registered it
is an equitable easement, and therefore not an overriding interest under Schedule 3
para.3, but could be protected by means of a notice (s.32 LRA 2002) in the absence
of which Iggy will not be bound (s.29 LRA 2002) provided he is a purchaser for
valuable (excluding nominal and marriage) consideration (s.132 LRA 2002).
Unreg Title – Legal easement under (s.52 LPA) and Iggy therefore bound.
iii) Roger
Reg Title – Provided agreement complies with the requirements of s.2 LP(MP)A
1989, this is an estate contract that can be protected by means of a notice (s.32
LRA 2002) in the absence of which Iggy will not be bound (s.29 LRA 2002) provided
he is a purchaser for other than nominal or marriage consideration (s.132 LRA
2002).
Unreg Title – Protectable as a Class C(iv) Land Charge registered against the name
of Alastair in the absence of which Iggy will not be bound (s.4(6) LCA 1972)
provided he is a purchaser for money or money’s worth (i.e. valuable consideration
including nominal but not marriage Midland Bank v Green).
iv) Nick
Reg Title – Nick has an interest under either a resulting or constructive trust (no
need to differentiate at this stage in your equity career or spend overlong on Stack
et al.) which could have been ‘protected’ by means of a restriction ensuring no
dealings with the registered title in the absence of compliance with the requirements
of overreaching. Presumably no such restriction was in place since Alastair, as sole
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registered owner, has transferred title to Iggy who will take free of Nick’s interest
unless Nick is in occupation and that occupation is discoverable on a reasonably
careful inspection
Unreg Title – As an over-reachable interest that has not been over-reached the
issue is governed by the equitable doctrine of notice (Kingsnorth v Tizard). It would
be useful to note that in contrast to registered land this will come down to whether
or not Iggy has actual or constructive notice of the interest (rather than the
occupation).
Law cases, reports and other references the Examiners would expect you to
use
LRA 2002 and LCA 1972.
Common errors
A large number of candidates spent most of their answer discussing whether or not
a lease, an easement, an option or an interest behind a trust had been acquired.
However, on the facts as stated that really was not an issue. It is obvious that these
interests (subject to the minor caveats detailed above) have been acquired by the
respective third parties. Thus, what we are looking for is whether the interest
acquired by the third parties will bind the new owner. This is a question about the
mechanisms of land registration and you need to focus your energies accordingly.
A good answer to this question would…
Because this is technical problem question candidates can gain real credit if they
take the opportunity to comment on the efficacy or otherwise of the mechanisms
even if tripped up by some of the detail.
Poor answers to this question…
Simply went through the requirements of each interest and stated that they had
been fulfilled.
Student extract
‘In answering this question I must first consider the history of land registration
and the various statutory provisions that have moulded the law as we know it
today. This will involve an examination of the Land Registration Acts of 1925
and 2002 along with other relevant legislation. Prior to 1925…’
Comment on extract
Please avoid this type of ‘introduction’ (which often extends for two or three pages).
In a problem question you do not have time to provide a generic introduction
discussing the law’s history or provisions in abstract. You need to start applying the
law to the facts from the outset by swiftly identifying the issues and explaining (in so
far as one can) the law that applies in those circumstances.
Question 3
“Proprietary estoppel and constructive trusts play very similar roles in the
informal acquisition of land law rights.”
Discuss.
General remarks
Candidates were expected to draw on judicial and/or academic views to explore the
essential ingredients of claims that invoke constructive trusts and proprietary
estoppel, their similarities and differences. This could include highlighting the wider
range of discretionary outcomes available to the court in satisfying estoppel claims.
As the question is not confined to the acquisition of beneficial rights, answers could
also engage with a wider range of issues such as a consideration of the uncertainty
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regarding when/if estoppel can be pleaded where a land contract fails to satisfy s.2
of the Law of Property (Miscellaneous Provisions) Act 1989.
Law cases, reports and other references the Examiners would expect you to
use
Yeoman’s Row Management Ltd v Cobbe, Thorner v Majors etc.
Common errors
A tendency for candidates to write all they knew on the topic. Before commencing
your answer you must take the time to plan your essay by harnessing your
knowledge to the question asked. Examiners would far rather read (and give more
marks for!) a slightly shorter but well planned essay than a long and unfocused one.
A good answer to this question would…
Reach a conclusion after examining both the similarities and the differences.
Poor answers to this question…
Offered rote learnt regurgitation of textbooks with no attempt to address the
question asked.
Question 4
“Although identifying the legal distinction between a lease and a licence is
straight-forward, applying the distinction in practice has proved far more
problematic.”
Discuss.
General remarks
The first clause in the quotation essentially invites a consideration of Lord
Templeman’s approach to (and emphasis upon) exclusive possession in Street v
Mountford. Answers may also wish to identify/explore the exceptional
circumstances recognised in Street, where there may be exclusive possession
without creating a lease. When it comes to consider whether or not applying the
distinction has been problematic answers can include a variety of points – such as
drawing upon post-Street case law concerning joint occupiers, shams, public
lettings and commercial agreements.
Law cases, reports and other references the Examiners would expect you to
use
In addition to Street, a variety of cases can be referred to including Antonadies v
Villiers; AG Securities v Vaughan; Mikeover v Brady; Stribling v Wickham,
Manchester Airport v Dutton, Bruton v London & Quadrant Housing Trust etc.
Common errors
Too many candidates offered unfocussed rote learnt answers in the general area
with little if any attempt to address the specific question asked.
A good answer to this question would…
Critically examine the distinction. What are the strengths and weaknesses in placing
so much emphasis on exclusive possession? Does it make sense to ever conceive
of exclusive possession existing in the exceptional situations where Templeman
says it does absent a lease? Would it not be better to describe those situations as
examples of exclusive occupation not possession; or is Templemen suggesting that
in those exceptional situations the licence holder would not have a lease but would
have the exclusive possession necessary to support an action in trespass against
third parties? Of course, does that matter in light of Dutton where the CA held that a
licencee had rights against third parties anyway? Is that a sensible and pragmatic
decision or is the (unintentional but implicit) recognition of a proprietary licence in
that case as nonsensical as the apparently non-proprietary lease in Bruton?
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Examiners’ report 2013
Question 5
Sarah was the owner of an area of land which she divided into three plots
known as Plots 1, 2 and 3. Sarah sold Plots 1 and 2 and retained Plot 3.
(a) Sarah sold Plot 1 to Anne who covenanted with the current owners of
Plots 2 and 3 to maintain Plot 1 as “an ornamental garden” and to build and
maintain an “ecological bio-sphere” on the land for the preservation of rare
plant species. It was further stated that “the benefit of the covenant to build
and maintain the bio-sphere is only to pass by express assignment”. Anne is
planning to demolish the bio-sphere and build a power station on Plot 1.
(b) Sarah sold Plot 2 to Fiona who covenanted with the current owners of Plot
1 and 3 to only use the land for residential purposes and build no more than
one house on the plot. Fiona built a house on Plot 2 and sold it to Catriona
without including an express assignment of the benefit of any covenants.
Catriona plans to build two further houses and run her property development
business from Plot 2.
Discuss the private law rights and obligations that Sarah, Anne, Fiona and
Catriona have in respect of the planned changes of use.
General remarks
(a) Anne is the original covenator and thus there is no issue regarding the
burden passing. The only issue is the extent to which she is bound to the original
covenantee Sarah and her successors in title to one of the plots Fiona and
Catriona. Clearly, as original covenatee, Sarah can sue at law (damages) and in
equity (specific performance) and, as she retained Plot 3 will receive more than
simply nominal damages. The benefit of the first covenant appears to have been
annexed to Plot 2 (under Federated Homes) when it was sold to Fiona who could
still sue on it but would presumably only receive nominal damages. The benefit
likewise passes to Catriona who can sue in law or equity. Whether or not the benefit
of the second covenant passed to Fiona under an express assignment it clearly did
not pass to Catriona.
(b) The holders of the benefit, Sarah and Anne, are parties to the covenant
(either inter partes or under s.56 LPA) and thus this part is concerned with the
passing of the burden. Fiona, as original covenantor, remains liable on the original
covenants, however Sarah and Anne will be more interested in whether they have
an action against her successor in title, Catriona. This will, of course, depend on
whether the burden has passed in equity. Candidates should discuss the negative
substance of both covenants and the other requirements (including briefly how
Sarah and Anne might have protected their interests in both registered (a notice)
and unregistered title (D(ii)).
Law cases, reports and other references the Examiners would expect you to
use
Federated Homes, Tulk v Moxhay etc.
Common errors
A failure to show a real understanding of the issues that arise in this context. Many
candidates failed to understand the significance of Anne being the original
covenantor regarding the benefit passing, nor the fact that Sarah and Anne were
parties to the covenant regarding the burden passing.
A good answer to this question would…
Identify the particular issues arising and clearly identify who were parties to the
covenant.
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Poor answers to this question…
Talked blandly about how the benefit and burden pass generally in this context with
no real appreciation of the particular facts of the question.
Question 6
Andy was the registered owner and occupier of Umbridge Hall, comprising a
house set in extensive grounds and a separate block of stables. In 2007, when
Andy gave up his horse-riding business, he granted Barney a lease of the
stables for a period of five years to run a horse-riding business. A few months
after the start of the lease Andy allowed Barney to fix a sign advertising the
stables to the side wall of the house next to the main road. Andy also told
Barney that he was happy for horses to carry on using a track over the
grounds of Umbridge Hall because it is the quickest route to the local
common where they exercised. Barney was so grateful he let Andy keep his
horse, Dasher, in an empty stable.
In 2012 Andy renewed Barney’s lease for a further five years. Andy has since
sold the freehold of Umbridge Hall to Caroline. Caroline has asked Barney to
remove the unsightly advertising sign from the wall of her house, and to stop
using the track over the grounds of Umbridge Hall because the horses are too
noisy. She has also insisted that when Andy sold Umbridge Hall she had been
told that she would be entitled to use one of the stables to keep her own
horse, Prancer.
Discuss.
General remarks
Broadly speaking, answers should navigate three key issues. First you should
consider if the various claims (Barney’s permission to fix the sign and use the track
and Andy’s use of an empty stable) are capable of satisfying the Re Ellenborough
Park guidelines for eligibility to be an easement. The second set of issues involve
considering which, if any, of the recognised means by which an easement may be
impliedly granted/reserved may or may not apply to the various rights when
Barney’s lease is renewed in 2012. Finally, there is a need to discuss how the sale
of the freehold of Umbridge Hall to Caroline will effect the enforceability of any
easement to which Barney may lay claim – essentially by virtue of Schedule 3 LRA
2002.
Law cases, reports and other references the Examiners would expect you to
use
Re Ellenborough, Moody v Steggles, Hill v Tupper, Wheeldon v Burrows, Batchelor,
Moncrieff, s.62 LPA, Schedule 3 LRA etc.
Common errors
Many candidates failed to see there are three broad issues to consider:
(a) Are the various rights capable of being easements?
(b) If so how, if at all, were they created?
(c) If so how, if at all, do they bind a subsequent owner of the servant
tenement.
A good answer to this question would…
Actually sub-divide the answer (by the use of sub-headings) into three sections
each addressing one of the above areas.
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Poor answers to this question…
Failed to look beyond one of the three issues and spent too much time discussing
the generic law and failing to apply their learning to the facts.
Question 7
Ed approached Dainty Dairies after his bank refused to lend him the money
he needed to improve his farm buildings. Dainty Dairies agreed to lend Ed the
money. Dainty Dairies agreed that the money was repayable over ten years
and secured by way of a mortgage over the farm. Their mortgage deed
contained the following terms:
(i) Ed must sell half of the milk he produces each year to Dainty Dairies
for the duration of the mortgage at the prevailing market price.
(ii) Dainty Dairies has the right to buy three fields at the northern
boundary of the farm if it decides to build a new depot in the locality.
(iii) Ed cannot redeem the mortgage for the first nine years.
In 2013 Ed redeem the mortgage for the first nine ye When Ed missed two
loan repayments, Dainty Dairies wrote to him indicating that Big Bottles plc
had enquired about the possibility of buying Ed’s farm. Ed is keen to be able
to stay in possession to arrange his own sale because he believes this will
maximise his chances of realising the best sale price, which is important to
his plans to buy a smaller farm.
Advise Ed about:
(a) the validity of the terms of the mortgage;
(b) the rival proposals over possession and sale.
General remarks
(a) Advice should consider each of the three terms the mortgage in turn,
drawing on appropriate case law, to test how any of them may or may not fall foul of
equitable principles protecting Ed’s equity of redemption – most notably the doctrine
of clogs and fetters and unconscionability.
(b) Advice on the rival proposals for possession and sale may benefit by
including reference to relevant statutory provisions and associated case law.
Law cases, reports and other references the Examiners would expect you to
use
Norgan, Palk, Cuckmere Brick, s.36 of the AJA 1970; ss.91, 101,103 LPA 1925
Common errors
There was a failure on the part of a sizeable number of candidates to address the
different issues raised by each of the separate clauses you were asked to advise
upon. Please avoid repeating the same case law in an examination script.
A good answer to this question would…
Raise the relevant cases on clogs and fetters and unconscionability at the relevant
point in the discussion.
Poor answers to this question…o
Cited lots of cases but made no attempt to explain their particular relevance to the
various points raised in the problem.
Question 8
In 2008 Sam, Tarquin, Ursula and Venus bought Lofty Towers as a place to
live and run a small Bed and Breakfast business. Sam and Tarquin each paid
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35% of the purchase price and Sam 20%, whilst Venus only put in 10% as she
was going to undertake the running of the Bed and Breakfast. The house was
conveyed to the four of them as beneficial joint tenants.
In 2011 Sam went to work abroad. He sent an unsigned written note to Ursula
and Tarquin saying that he wanted Lofty Towers to be sold immediately so
that he could take his share. The note was sent by registered post to Lofty
Towers and was opened by Ursula who immediately threw the note away
without showing it to Tarquin. On emptying the bin Venus discovered the
note and sent an SMS text message to the three remaining owners telling
them that she was hurt not to have been consulted and had consequently
decided to sell her share of Lofty Towers.
In 2012 Ursula died. Her will left all of her property to Tarquin.
You are consulted by Sam. He has returned to the UK and he wants to return
to live in Lofty Towers. However, Tarquin and Venus have told him that they
have agreed to sell Lofty Towers and he will have to find somewhere else to
live.
Advise Sam:
(a) as to the effect of the above events on the legal estate and equitable
interests in Lofty Towers;
(b) whether Tarquin and Venus are entitled to exclude him from living
there and whether there is anything he can do to prevent a sale.
General remarks
(a) The express declaration clearly creates a beneficial joint tenancy despite
unequal contributions. Is Sam’s letter sufficient notice of severance under s.36 and
what are the requirements for serving under s.196? Clearly the lack of signing is not
significant, nor the fact that Tarquin did not get an opportunity to read it (Kinch).
However, what about the failure to address it to Venus? Under s.196(4) there is a
requirement to include the names of those one intends to serve; but s.196(3) is
more Delphic despite joint tenants clearly not coming within the express exemption
from naming under s.196(2). On the assumption that it does not sever, will Venus’s
text message work? In the absence of direct authority one could, I suppose, argue
that this is ‘notice in writing’. However, the inclusion of the indefinite article in the
statute surely ensures this is not ‘a notice in writing’; while the mischief the provision
seeks to address is hardly well served by recognising the (essentially transitory) text
message as a valid notice in this context.
(b) You simply need to apply the relevant statutory provisions in the 1996 Act.
Law cases, reports and other references the Examiners would expect you to
use
ss.36, 196 LPA 1925; ss.12–15 TOLATA 1996, Kinch v Bullard etc.
Common errors
Talking about the belated attempt to sever on Ursula’s death.
A good answer to this question would…
Use the statute book to construe the provisions in light of relevant case law.
Poor answers to this question…
copied out sections of the statute book (for which you gain absolutely no credit).
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