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Examiners’ reports 2016

Examiners’ reports 2016

LA3003 Property law – Zone A

Introduction
Despite recent Property law Examiners’ reports beginning with practical tips on how
students might leverage their knowledge and do well in the examination, far too few
of you heed our advice. Thus this year, as in previous years, the examiners were
confronted by large numbers of students who, despite evident hard work, failed to
achieve their potential because of poor technique. As we have said repeatedly (in
the vain hope that you will believe us!) please remember that the examination is not
a test of knowledge but of the application of knowledge and, before considering the
substantive advice on each question below, make sure you have assimilated the
following general advice. We estimate that over 90 per cent of the scripts we see
each year would be improved if students took on board these various simple yet
critically important practical points.
1. Poor handwriting – most, if not all, students should consider writing on
alternate lines as this invariably makes reading (and therefore marking)
easier.
2. 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.
3. Avoid waffle – too many students still seem to think that reciting rote learnt
bookwork in the general area of the question will get them marks – it does
not and just irritates the examiner. Focus on the question asked, and the
issues raised, throughout your essay.
4. Avoid overlong introductions – start addressing issues from the outset in
both essays and problem questions.
5. 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. This is an exam answer, not a scholarly article and you should
not waste time repeating yourself.
6. Never quote chunks out of the statute book – we know you have it with
you in the exam and give no marks for accurate copying!
7. 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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8. Avoid inventing new facts in problems – there is more than enough to
say in the exam 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.
9. 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).
10. Do not be frightened by ambiguity – a single judgment will often have a
number of possible ratios on which jurists might well disagree, whilst 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 – language lacks the
precision of mathematics which is why poetry is beautiful and (some)
lawyers rich!
11. Make sure you divide up your time sensibly and spend as long on
your last question as on your first – time spent perfecting your initial
answer is counter-productive if you eat into the time you should be
spending on your last answer.
12. Use subheadings in your answer – judges do so, so why shouldn’t you?
And if the question is in parts make sure you divide your answer likewise.
13. 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 CA precedents and, although nominally bound by HL/SC
decisions, still able to criticise or distinguish them.
14. 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).

Comments on specific questions


Question 1
‘It would seem unlikely that many lawyers would advise a client in adverse
possession to apply to the Land Registry to be registered as proprietor,
knowing that would begin a process by which the registered owner is traced,
notified and given a very real incentive to commence possession proceedings
in a timely fashion.’
Discuss.
General remarks
This question forces you to address the practicalities of the 2002 reform of adverse
possession. It requires knowledge of what those reforms consist of and an
appreciation of the potential problems inherent in the new process. Students do not
have to agree or disagree with the statement and are at liberty to take any position
they choose (including strong or more nuanced support or hostility to the detail

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and/or general direction of reform) provided they include a reasoned analysis of the
practical legal issues involved.
Law cases, reports and other references the examiners would expect you to use
Land Registration Act 1925 s.75, Limitation Act 1980, Land Registration Act 2002,
Sch 6, Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.144, Land
Registration For The Twenty-First Century A Conveyancing Revolution Law Com
No 271, Pye v Graham [2002], Zarb v Parry [2011], IAM v Chowdrey [2012], Best v
Chief Land Registrar [2015].
Common errors
Too few candidates had a proper grasp of what was being asked of them, with
many either assuming that the statement was advocating that lawyers should act
against their clients’ best interests on the basis that squatting is immoral; or that the
statement was so obviously wrong, in law, that it required no analysis to rebut. Not
many candidates addressed the practical problems inherent in the new process.
A good answer to this question would…
briefly explain why the statement does not apply to an unregistered title, nor
registered titles where there has been 12 years of continuous adverse possession
prior to the coming into force of the LRA 2002 on 13 October 2003. It would then
outline the process introduced under LRA 2002, Schedule 6 and the rationale
behind this reform as explained in the Law Commission/Land Registry Report that
preceded it. The remainder of the answer should address the practical obstacles
inherent in the process. Would, for example, a lawyer acting in his client’s best
interests, be likely to recommend initiating a process designed to incentivise the
registered owner in asserting his rights and evicting the client? Would a lawyer
normally be more likely to advise his client to stick with what he had, rather than risk
it all for something better? In what three situations (and why) would it be much safer
for a solicitor to advise his client to apply for registration? Beyond the civil law, is
there a reason in the criminal law as to why a solicitor might conceivably advise his
client not to advertise (and thereby admit) his adverse possession by applying for
registration? How convincing are these various concerns? Remember you are at
liberty to agree or disagree with the statement but in so doing you need to address
the issues it raises and not simply proceed by assertion by ignoring them.
Poor answers to this question…
simply regurgitated the law on adverse possession to varying degrees of accuracy
and details without any attempt to address the practical consequences of the new
process.
Student extract
Adverse possession is one of the most interesting areas of property law as it
involves the concept of squatting and the rights of the squatter. The law
doesn’t aid the sleeping lawyer and it is quite likely that many lawyers would
advise a client in adverse possession to apply to be a registered owner. An
adverse possessor or squatter must meet the requirements of the LRA 2002.
Schedule 6 permits the registration of estates in land by a person upon
application if he has been in adverse possession of the estate for the period
of ten years…
[The essay then proceeds by outlining in very vague terms the process under the
LRA 2002 and then turns to the Human Rights Act, for no obvious reason, before
finishing with the following conclusion.]

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It is quite likely that many lawyers would advise a client in adverse
possession to apply to the land registry, knowing that it would begin a
process of notification of the owner but also knowing that the squatter’s rights
are also protected.
Comments on extract
This is a poor attempt as it fails to address any of the issues raised and contains a
mixture of meaningless waffle and rote learnt bookwork. While it is sensible to refer
back to the language of the quotation there is no point simply re-writing the
quotation without including any analysis of what is being said. Such an essay would
be highly unlikely to achieve a pass mark as the student has not applied his/her
knowledge to the question asked.
Question 2
Alastair was the registered owner of Grantchester, where he lived with his
long term companion, Nick, who paid the entire purchase price. Grantchester
is a country estate that includes two fields known as White Field and Gold
Field.
Last year:
i) Alastair granted Stephen by deed a ten year lease of White Field.
ii) Alastair agreed in writing to grant Dawn the right to use a shortcut
across Gold Field to access the road from her house.
iii) Alastair agreed, in writing, to sell Grantchester to Roger.
iv) Nick was detained in a secure hospital having suffered a nervous
breakdown.
Last month Alastair sold Grantchester to Iggy who is now the registered
owner of Grantchester. After moving in, Iggy asked Stephen to leave White
Field and refused Dawn permission to cross Gold Field. In the meantime
Roger has asked his solicitors to complete his purchase of Grantchester,
whilst Nick is planning to return to Grantchester on his discharge from
hospital tomorrow. Alastair has now disappeared with the proceeds of the
sale, whilst Iggy has asserted that he is not bound by Roger’s interest and
has changed the locks to ensure Nick cannot let himself into the house.
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 standard problem question on priorities in registered and unregistered title
and is testing your ability to apply the statutory provisions that govern each.
Law cases, reports and other references the examiners would expect you to use
Law of Property Act 1925, Land Charges Act 1972, Law of Property (Miscellaneous
Provisions) Act 1989, Land Registration Act 2002, Chhokar v Chhokar [1984].
Common errors
Despite warnings in previous Examiners’ reports, many students waste time on
irrelevancies. In (i) for example you have been told that a lease has been granted
by deed and thus it is a complete waste of time (for which you will gain no credit) to
detail the requirements of a valid deed and/or lease. There is no issue here as the
question categorically states that point and thus it must follow that the requirements
for both a valid lease and deed have been met. The point in (i) is not to second

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guess the examiners, by doubting our word as to what occurred, but to consider
how and in what circumstances the formal lease granted by Alastair will bind the
subsequent purchaser, Iggy. In contrast under (ii), it is acceptable to briefly detail
the requirements of a valid easement as the right described could either be an
easement or a licence and, as you have not been told which, it is important to
consider the possibility of either and the factors by which one or other would be
established. But please remember the main issue in (ii), as in (i), (iii) and (iv),
remains the question of priority and thus each answer should concentrate primarily
on how and in what circumstances the right granted by Alastair will bind the
subsequent purchaser, Iggy.
A good answer to this question would…
look at each issue in turn. Your answer should therefore be divided into the
following eight sections after noting that, as Alastair ‘sold’ Grantchester to Iggy, the
latter is presumably a purchaser under the differing requirements of both the LCA
(s.4) and the LRA (s.132).
(a) (i) Under LRA 2002, s.27, a lease over seven years (even if granted by
deed) is not legal unless it has been substantively registered, in which case
it will bind Iggy. If it is not so registered it will only take effect in equity, but
may be protected by means of a notice (s.33) and will, insofar as the
interest is valid (s.32), bind Iggy (s.29). If it is not substantively registered,
nor protected by means of a notice, it will only bind Iggy as an overriding
interest if coupled with discoverable occupation (s.29 and Sch 3, para.2).
As a lease over seven years it cannot also be an overriding interest under
Sch 3, para.1.
(ii) Dawn’s interest might simply be an express licence which, as a personal
right, would not bind Iggy and is not registrable, nor protectable, nor
capable of being an overriding interest. As there is a dominant and servient
tenement, owned by different parties, the shortcut may amount to an
easement provided there is sufficient proximity between the house and the
field, which, on the facts, seems highly likely. Despite the likely use of a
deed (‘grant’), as required under LPA, s.52, in the absence of substantive
registration (LRA, s.27) the express easement would only be equitable
(complying with LPA, s.53(1)(a)). Such an interest is protectable by means
of a notice (LRA, s.33), which will, insofar as the easement is valid (s.32),
bind Iggy (s.29). As an equitable easement, it cannot be an overriding
interest under Sch 3, para.3, which only applies to informal legal easements
arising impliedly or by prescription.
(iii) Provided the written agreement complies with LP(MP)A 1989, s.2, and
is consequently signed by both parties, it is a specifically enforceable
contract to transfer an interest in land, which, as an estate contract, is
protectable by means of a notice (LRA, s.33), in which case Iggy will again
be bound but not otherwise.
(iv) Nick contributed the entire purchase price, and in the absence of
evidence of gift, is likely to hold a beneficial interest under either an express
or, in the absence of any signed written evidence of express declaration
(LPA, s.53(1)(b)), implied trust (either resulting or constructive, s.52). As an
overreachable interest (s.2) it is neither substantively registrable (LRA,
s.27), nor protectable by means of a notice (s.33). However a restriction
might be entered (s.40), requiring that any disposition of the legal title
comply with the requirements of overreaching, mandating any proceeds of
sale be paid to at least two trustees or a trust corporation (LPA, s.27). As
Alastair, as sole legal owner, entered into a disposition transferring title to

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Iggy, no such restriction could have been in place. Nick’s interest has
consequently not been overreached but will only bind Iggy if coupled with
discoverable occupation (s.29 and Sch 3, para.2). It consequently has to be
established whether, despite his physical absence in hospital, Nick remains
in occupation (which seems likely – Chhokar v Chhokar) and, if so, whether
either: the occupation (rather than the interest) was discoverable (which
appears more problematic); or else, whether the interest (rather than the
occupation) was known personally to Iggy (about which we have no
evidence).
(b) (i) As a legal interest in unregistered title the lease binds the world including
Iggy.
(ii) If it is an express licence, Iggy is not bound by a purely personal
interest. If, on the other hand, it is an easement granted by deed in
accordance with LPA, s.52, it is legal and consequently binds the world
including Iggy.
(iii) If it is an estate contract, Alastair could have registered it as a Class
C(iv) Land Charge (LCA, s.2) in which case Iggy is bound but otherwise
takes free irrespective of his knowledge.
(iv) As an overreachable interest that has not been overreached, Nick’s
interest is governed by the equitable doctrine of notice and Iggy will take
free unless he has actual, constructive or imputed knowledge of Nick’s
interest.
Poor answers to this question…
concentrated on the validity of the subsidiary interests rather than the issue of
priority or showed little real understanding of how the rules of priority worked. Far
too many students sought to apply the Land Charges Act in the context of
registered title, where it has no application.
Question 3
‘Rather than undermining formalities, proprietary estoppel is the critical
safeguard by which their requirements can be justified.’
Discuss.
General remarks
A question asking students to address the policy issues that unify the seemingly
contradictory requirements of formalities and proprietary estoppel.
Law cases, reports and other references the examiners would expect you to use
Law of Property Act 1925, Law of Property (Miscellaneous Provisions) Act 1989, no
particular cases are expected as there are a wide selection illustrating the policy
considerations underlying formalities and proprietary estoppel.
Common errors
A large proportion of candidates simply wrote generalised essays on either
formalities, proprietary estoppel or both.
A good answer to this question would…
begin by considering the reasons why formalities are required including the
evidentiary function (proving what was done), the cautionary function (concentrating
minds as to its import) and the channelling function (ensuring it is done via the
legally prescribed route). Ultimately, therefore, dry, boring formalities turn out to be
critically concerned with the noble cause of transactional justice as they promote
certainty, fairness and circumspection. Yet, despite these rarefied aims there is also
a contradiction at their heart, a problem inherent in all formalities, what Birks

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described as an ‘inescapable tension [as] formality breeds hard cases’. Thus quite
paradoxically, despite existing to promote justice in exchange, those who are most
vulnerable (be that through poverty, ignorance or stupidity) are the very people
most likely to be caught our by formalities strictures because they cannot afford, do
not take, or only receive sub-standard advice. Thus the very act of promoting justice
creates injustice for the small minority not able to take advantage of what formalities
have to offer. It is to this constituency that proprietary estoppel directs its efforts, by
forgiving a failure to comply with formalities in situations where it would be
unconscionable to do otherwise. That, however, produces further tensions for the
forgiving of such failure is itself dangerous, as it risks causing greater injustice by
undermining formalities generally and the justice they are designed to promote,
whilst also increasing uncertainty; who, after all, would go to the cost and time of
formality if proprietary estoppel was always willing to forgive a failure to comply; or
place much reliance on something that might thereby be undermined? That is why
proprietary estoppel operates under such constraints and the case law ebbs and
flows as the courts battle to maintain a balance that seeks to maximise both justice
and certainty.
Poor answers to this question…
simply recited various cases concerned with formalities and/or proprietary estoppel,
producing little more than a list of vaguely relevant authorities, which made no
meaningful attempt to address the issues raised.
Question 4
‘There seems little enthusiasm, or rationale, for the Certainty of Term
requirement in leases.’
Discuss.
General remarks
This is a question on ONE of the TWO substantive requirements of a valid lease
providing students with an opportunity to discuss judicial and academic discussion
on the significance and function of Certainty of Term.
Law cases, reports and other references the examiners would expect you to use
Law of Property Act 1925, Lace v Chantler [1944], Re Midland Railway Agreement
[1971], Ashburn Anstalt v Arnold [1989], Prudential Assurance v London Residuary
Body [1992], Berrisford v Mexfield [2012].
Common errors
The question is not asking for an essay on all the requirements of a lease, yet many
proceeded to discuss exclusive possession, often in great detail and achieved no
credit despite their obvious learning on the topic.
A good answer to this question would…
provide an overview of the requirement in standard leases, beginning with Lace v
Chantler and not forgetting the conceptual difficulty in applying the principle to
periodic tenancies. The essay should chronicle examples of judicial disenchantment
with, and glosses on, the rule including Midland Railway Agreement and Ashburn
before charting the return to a very rigid orthodoxy under Prudential and the judicial
ingenuity employed to effectively avoid the rule in certain situations under Mexfield.
A good essay should also consider academic commentary on the subject, including
those who support the rule (e.g. Sparkes (1993) 109 LQR 93) and those who do not
(e.g. Kohler (1993) 46 CLP 69). A good student could gain much credit by having
actually read the important cases. This would, for example, enable you to illustrate
the point (by reference to the particular speeches in the case) that, despite its
unanimity, Prudential is a far weaker authority than that simple fact suggests, with
only Lord Templeman (the losing QC in Midland Railway Agreement) showing any

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great enthusiasm for a rule for which the majority had little, if any, appetite. Viewed
from that perspective, the lengths to which the Supreme Court was willing to go, in
(somewhat artificially) avoiding the rule in Mexfield, become much more easily
understandable.
Poor answers to this question…
wrote generalised essays, usually on the ‘three’ substantive requirements of a
lease, even though exclusive possession is irrelevant to the question asked and
rent is not even a substantive requirement (LPA 1925, s.205) but, at best, only
probative.
Question 5
Sarah was the owner of a piece of land abutting a river. Five years ago she
entered into a contract with David who covenanted to maintain the flood
defences abutting her land for the next twenty years. The following year her
neighbour Romulus divided his large area of land into eight separate plots on
each of which he began building a house to sell. Sarah decided to do likewise
dividing her smaller piece of land into two separate plots and agreed with
Romulus to create a small exclusive estate of ten houses for sale. In order to
enhance their value and prestige, they decided to include covenants to the
following effect in each house sale. The covenants required each purchaser
to agree that:
i) Their property would only be used for residential purposes.
ii) Each owner would pay 10% of the costs of maintaining the estate’s
private road.
iii) Each owner would pay 10% of the costs of providing free boat trips on
the river.
Romulus then sold plots 1 to 8 with each purchaser entering into a covenant
with him on these terms. Sarah then sold plot 9 to Jack who covenanted on
the above terms with ‘Sarah and the present owners of plots 1 to 8’. The
contract also included an assignment of the benefit of David’s covenant to
maintain the flood defences. The following week Sarah sold plot 10 to
Beatrice who covenanted with Sarah in similar terms although this time the
contract made no reference to the owners of the other plots, nor included any
written assignment of the benefit of David’s covenant.
Jack has recently converted his house into a hotel and is refusing to pay for
the maintenance of the road or the provision of boat trips, whilst the entire
estate has become waterlogged after David failed to maintain the flood
defences.
a) Discuss.
b) How, if at all, would your advice differ if Beatrice, rather than Jack,
was acting in breach of these covenants?
c) How, if at all, would your advice differ if Ahmed, a successor in title
to Beatrice, was acting in breach of these covenants?
General remarks
This is a problem on non-leasehold covenants (often referred to in textbooks as
freehold covenants) that tests students’ understanding of the principles that apply in
this area to both the original parties and those to whom either the benefit or burden
has passed.

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Law cases, reports and other references the examiners would expect you to use
Law of Property Act 1925, Smith & Snipes Hall Farm v River Douglas Catchment
Board [1949], Rogers v Hosegood [1900], Federated Homes v Mill Lodge
Properties [1980], Re Dolphin’s Conveyance [1970], Roake v Chadha [1984], Tulk v
Moxhay [1848].
Common errors
This question was answered very poorly by the majority of candidates, with most
answers failing to identify the original parties to the covenant, nor whether a
particular issue involved the passing of the benefit or the burden. It was obvious
that many of those who attempted the question had no real understanding of the
principles that govern non-leasehold covenants, offering formulaic responses that
simply highlighted their confusion.
A good answer to this question would…
Be divided into three sections as discussed below.
a) There are four, rather than three, covenants to consider: not only (i), (ii) and
(iii) but also the contract between David and Sarah which we will consider
first.
David and Sarah are the original parties to a covenant to maintain the river
defences under which David, as covenantor, assumes the burden and
Sarah, as covenantee, the benefit. Under normal contractual principles,
David is clearly liable on the covenant (at law but not in equity)
notwithstanding he has no land burdened by the covenant, as illustrated in
Smith & Snipes Hall Farm v River Douglas Catchment Board [1949]. As for
the benefit, Sarah can, as holder of a chose in action that is not exclusively
personal, assign it provided she does so in writing in accordance with Law
of Property Act 1925, s.136. Thus, when Jack bought plot 9, he acquired
the benefit of the covenant under an express assignment and can sue
David, as original covenantor, for his failure to maintain the flood defences.
In contrast, when she acquired plot 10, there was no similar assignment of
the benefit to Beatrice, and thus she can only sue David if the benefit
passed at law because it was annexed to the land she acquired. Under
Rogers v Hosegood [1900], the benefit can only be annexed at law if it, as
the flood defences clearly do, touches and concern the land of Sarah, the
original covenantee; whilst both parties must also, as appears highly likely
here, have had a legal estate in the land (although, under LPA 1925, s.78,
not necessarily the same legal estate). In the absence, as here, of an
express annexation, a statutory annexation under s.78 will then arise, under
Federated Homes v Mill Lodge Properties [1980], unless a contrary
intention is shown (Roake v Chadha [1984]). Therefore Beatrice, as legal
owner of plot 10, can, like Jack, also sue David for his failure to maintain
the flood defences; unlike Romulus, or the owners of plots 1 to 8, who,
despite their practical interest in the flood defences being maintained, have
no contractual nexus with David enabling them to enforce the covenant.
Turning to covenants (i), (ii) and (iii), Jack, as original covenantor, is liable
for their breach irrespective of whether the burdens are positive or negative.
He can, consequently, be sued by Sarah as original covenantee, although,
as she has parted with the benefited land (plot 10), any damages will
probably be nominal, with the court similarly unlikely to grant an equitable
remedy. However, under LPA 1925, s.56, the ‘present owners of plots 1 to
8’ are also regarded as parties to the covenant and can therefore sue Jack
on all the covenants and, insofar as they retain their plots, be awarded
substantial damages and/or injunctive relief. Whilst neither Beatrice, nor
any successors in title to plots 1 to 8, are parties to the covenants under

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LPA, s.56, they can sue on (i) and (ii) under Federated Homes, provided
they acquire a legal estate, as both covenants, unlike (iii), touch and
concern the land and thus the benefits will, in the absence of contrary
intention, be statutorily annexed under LPA, s.78.
b) Beatrice, as original covenantor, is likewise liable, like Jack, to the original
covenantee, Sarah, but not the owners of plots 1 to 8 under s.56 as they
were not similarly mentioned in the conveyance. Nor is she liable at law to
Jack, as he bought plot 9 before she made the covenant with Sarah and
thus the benefit could not have been annexed at law to the land he
acquired at the time he bought it. However, as they touch and concern the
land, the benefit of covenants (i) and (ii) might pass in equity to the owners
of all the other plots (e.g. plots 1 to 8, Jack and their successors in title
whether they acquire a legal or equitable estate), under a scheme of
development, where the absence of a common vendor is not critical (Re
Dolphin’s Conveyance [1970]), and the necessary reciprocity is clearly
present.
c) Ahmed, as a successor in title to Beatrice, will be similarly liable to the
owners of all the other plots, like her, under a scheme of development but
only in respect of covenant (i), provided the burden has been protected by
means of a notice (registered title) or a Class D(ii) land charge
(unregistered title), as it is negative; unlike covenant (ii) where the burden is
positive and cannot therefore pass either in law or in equity.
Poor answers to this question…
talked about the burden passing to Sarah and Jack, seemingly oblivious of the fact
that they were the original parties to the covenant and did not appreciate that (a)
and (b) dealt exclusively with the passing of the benefit and only (c) was concerned
with the passing of the burden.
Question 6
Andy was the registered owner and occupier of a house with an adjoining
commercial garage. In 2007, when Andy retired, he granted Barney a lease of
the garage for a period of five years. For many years there had been a sign
advertising the garage on the side wall of the house next to the main road,
however Andy removed it a few weeks after Barney took possession of the
premises. The forecourt of the garage was quite small and Andy had
occasionally parked cars awaiting repair on the drive of his house, but, when
Barney began doing so, Andy asked him to stop. In retaliation Barney told
Andy that he would no longer be allowed to cross the garage forecourt, which
separated the drive from the main road. This prevented Andy parking his car
on the drive although it was still possible to access the drive on foot via a
footpath that ran between the forecourt and the house. A few weeks later
Andy and Barney decided they were both being petty; Andy allowed Barney
to reinstate the advertising on the side of his house and said he could use the
drive occasionally in return for Andy being allowed to resume driving over the
forecourt. In 2012 the lease was renewed for another 5 years at which point
Barney told Andy he was, once again, no longer permitted to drive over the
forecourt. Andy consequently painted over the advertising sign and refused
to let Barney use his drive.
Discuss.

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General remarks
This is a standard problem on easements where candidates have two basic
questions to determine. First, is the putative right capable of being an easement
and secondly, if so, how, if at all, has it been created? Although an easement can
arise expressly, impliedly or by prescription, you only need to consider the first two
possibilities in any question, as the third is not currently examinable.
Law cases, reports and other references the examiners would expect you to use
LPA 1925, s.62, Moody v Steggles [1889], Hill v Tupper [1863], Re Ellenborough
[1956], Wheeldon v Burroughs [1879], Wood v Waddington [2015], Ward v Kirkland
[1967], Hillman v Rogers [1998], Wheeler v Saunders [1995], Millman v Ellis [1996],
Platt v Crouch [2003], Alford v Hannaford [2013], Batchelor v Marlow [2001],
Moncrief v Jamieson [2007], R Square Properties v Nissan Motors [2014], Peckham
v Ellison [1998], Re Dodd [1843].
Common errors
Candidates often failed to address both questions in respect of each of the three
potential easements and failed to show a proper appreciation of the differing
requirements under which an easement might be implied under necessity, common
intention, Wheeldon v Burroughs and LPA, s.62. A sizeable minority of students
failed to appreciate the difference between implied grants and reservations in
respect of both when they might arise and the conditions under which they are
governed.
A good answer to this question would…
consider each of the potential easements in turn. It is debatable but it is probably
worth postponing discussion concerning the subsequent facts, regarding the
parties’ reconciliation and subsequent further breakdown of relations, to the end of
the essay after first exploring the initial position pertaining at the point the first lease
was granted.
a) Something promoting a business is capable of being an easement and
students should contrast Moody v Steggles [1889] and Hill v Tupper [1863]
in deciding that this interest, in accommodating the land (as opposed to
Barney), does fulfil the necessary Re Ellenborough requirements of a valid
easement (dominant/servient tenement, different owners, accommodation,
subject matter of a grant). Such an easement could have been expressly
granted when the lease was granted, although we have no evidence that
such a grant took place. However, candidates should note the possibility,
as that is what a lawyer should first ask but, on the assumption that there
was not an express grant, we now need to consider whether it arose by
implication. There are four possible means by which an implied grant of an
easement might occur: necessity; common intention; Wheeldon v
Burroughs; and LPA 1925, s.62. Clearly, the grant could not arise under
necessity as it is not possible to argue that Barney could not use his land
without the advertising sign. Likewise, a submission based on common
intention is highly unlikely to succeed as, although there was no doubt a
common intention that Barney would run the garage as a business, it
cannot be argued that the advertising sign was necessary to achieve that
end. Obviously it would help the business, but that is not the test, as the
business could still run, albeit probably less successfully, in the absence of
the advertising sign. Clearly, had there been a more specific common
intention that the sign would be maintained, Barney could succeed on this
ground but there is no evidence to support such a claim on the facts stated.
Under Wheeldon v Burroughs, however, Barney has a greater chance of
success. As the sign existed prior to the granting of the initial lease, it
clearly fulfils the requirement of a quasi-easement, which, due to its very

11
physicality, was most certainly ‘continuous and apparent’. That might be
enough under Wheeldon, although the better view, following the
assumptions of the CA in Wood v Waddington [2015], is that the quasi-
easement must have been both ‘continuous and apparent’ and ‘necessary
for the reasonable enjoyment’ of the land. If that is, as seems likely, the law,
we now need to explore the final condition, although it is possible to argue
they remain alternative, rather than cumulative, conditions, as suggested in
Ward v Kirkland [1967] and, more ambiguously by Wheeldon. Determining
whether a right is ‘necessary for the reasonable enjoyment’ of the land is
not easy. The test is clearly not the same as necessity, as made clear in
Hillman v Rogers [1998] (cf. Wheeler v Saunders [1995] which is poorly
argued on this point), nor is it as specific as in common intention (where the
right must be necessary to achieve the specific common intention relied
upon). In this case, it would be determined by facts on which the question is
silent, regarding the extent of other advertising sites (Wheeler v Saunders
[1995]) and the relative importance of the site he is seeking to retain
(Millman v Ellis [1996]). Finally, candidates should consider LPA, s.62
because, although there was no diversity of occupation before the initial
lease was granted, it seems, according to the CA in Wood v Waddington
[2015] (following Platt v Crouch [2003] and Alford v Hannaford [2013]) that
that is no longer a requirement where, as here, the purported easement is
‘continuous and apparent’. That will, on these facts therefore, generate an
implied easement, provided the initial lease was legally conveyed, without
requiring the court to additionally consider whether it was ‘necessary for the
reasonable enjoyment’ of the land, as they would have had to under
Wheeldon.
b) Even where, as here, the other Re Ellenborough requirements have been
met, a potential easement of parking, will always require an examination of
the subject matter of a grant question as such easement lie on the border
between non-possessory rights and possessory estates in land. You should
therefore be equipped to discuss recent case law and the difference of
views represented by the decision in Batchelor v Marlow [2001] and the
obiter comments of Lord Scott in Moncrief v Jamieson [2007], where even
the ratio, despite being a House of Lords decision, is only of persuasive
authority as the case concerned the (albeit almost identical) Scottish law of
servitudes rather than the English law of easements. Recent case law (R
Square Properties v Nissan Motors [2014]) appears to favour the broad
Batchelor approach, pragmatically seeking to establish whether the servient
owner retains reasonable use, rather than the more formalistic approach of
Scott, who would be willing to find an easement, even if the answer to that
question was in the negative, provided the servient owner had not
abandoned ‘exclusive possession’ (i.e. formal possession and control). On
these facts, however, the use would surely pass both tests and thus one
need not dwell overlong (although briefly showing your erudition on the
point would not go amiss). How the easement might arise, in the absence
of express grant, again requires you to look at the four possible methods
considered above although you can afford to be briefer over the conditions
pertaining to each, as there is never any point repeating yourself in an
answer. Clearly, necessity and common intention will again not apply
(unless, regarding the latter, there was a specific common intention to allow
the cars to be parked, of which we have not been told). Under Wheeldon v
Burroughs, although it might (just) be possible to point to a quasi-easement
(given the occasional previous use by Andy) it was clearly neither
‘continuous and apparent’ nor (even if they are alternative conditions)

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Examiners’ reports 2016

‘necessary for the reasonable enjoyment’ of the land. In the absence of


prior diversity of occupation, invoking LPA, s.62 is similarly doomed given
the only occasional use.
c) Clearly, the right to cross Barney’s forecourt could be an easement as,
provided the plots are sufficiently proximate and in different hands, a right
of way will always fulfil the Re Ellenborough requirement regarding
accommodation and subject matter. However, as this is a potential
easement in Andy’s favour over the land he leased to Barney, the issue is
one of reservation, not grant, which, in the absence of an express
reservation, can only arise impliedly via necessity or common intention.
Common intention is normally more narrowly prescribed than in implied
grants and will only be a factor where there was a common intention to
reserve the specific easement claimed (Peckham v Ellison [1998]) which is
not the case on these facts. That leaves us with necessity where the
existence of another, albeit inconvenient, route means Andy is unlikely to
succeed (Re Dodd [1843]).
It is likely, therefore, that an implied easement will have arisen at the outset in
respect of the advertising sign but not the parking nor right of way. Consequently,
when Andy painted over it, Barney could rely on the right he acquired at the outset
to seek injunctive relief to restore the advertising sign. While Barney could not do
likewise, re the potential easement of parking, the subsequent licence granted by
Andy, prior to the grant of a new lease, means that under s.62 the licence Andy
granted Barney is likely to have been transformed into an easement. Barney
therefore now has both an implied easement of advertising (dating from the outset)
and an implied easement of parking (dating from the grant of the second lease).
Even though he was not the instigator of the current discord, Andy appears to have
no similar remedy against Barney, as the claimed right of way did not arise at the
outset and, as an implied reservation (rather than grant), cannot now arise under
s.62.
Poor answers to this question…
mechanically applied some or all of the various requirements with no real
understanding of what they comprised. It is not enough to learn a requirement by
rote; candidates need to be able to apply the requirement to the given facts and
thereby show the examiners that they understand it how it operates in practice.
Question 7
Ed, who owns a lease over a bar with twenty-two years remaining on the
demise, approached Babylon Brewers after his bank refused to lend him the
money he needed to renovate the bar. Babylon Brewers agreed to lend Ed the
money, repayable over 20 years, secured by way of a legal mortgage over the
bar. The mortgage deed contained the following terms:
i) Ed must buy all his spirits from Babylon Brewers at the prevailing
market price.
ii) Babylon Brewers has the right of first refusal if Ed ever decides to sell
the lease.
iii) Ed cannot redeem the mortgage for the first nineteen years.
In 2016 Ed’s business ran into financial difficulty. When Ed missed one loan
repayment, Babylon Brewers wrote to him with evidence that he had sold
spirits supplied by one of their competitors and indicating that Proud Prinnies
PLC had enquired about the possibility of buying Ed’s bar. Ed is about to
miss a second month’s loan repayment but is keen to stay in possession to

13
arrange his own sale because he believes this will maximise his chances of
realising the best sale price.
Advise Ed about:
a) the validity of the terms of the mortgage; and
b) the rival proposals over possession and sale.
General remarks
This is a standard problem on mortgages, much like the many previous examples in
the University of London Land and property law exam archives. None of the issues
raised should consequently have sprung any real surprises nor given a properly
prepared candidate any great difficulty. Despite that the problem was, unfortunately,
not particularly well addressed, by the vast majority of candidates who attempted it.
As a commercial loan there was little opportunity, or point, to consider the statutory
framework applicable to consumer mortgages.
Law cases, reports and other references the examiners would expect you to use
Law of Property Act 1925, Administration of Justice Act 1970, Biggs v Hoddinott
[1898], Noakes v Rice [1902], Kreglinger v New Patagonia Meat & Cold Storage
[1914], Samuel v Jarrah Timber [1904, Reeve v Lisle [1902], Knightsbridge Estates
v Byrne [1912], Fairclough v Swan Breweries [1940], Mortgage Services v Palk
[1993], Cheltenham & Gloucester BS v Krauz [1997].
Common errors
As in other questions on this paper, many students provided formulaic responses
that betrayed a lack of proper understanding and included subtle but critical
mistakes (such as using ‘unreasonable’ and ‘unconscionable’ as synonyms) that
revealed a failure to read, or properly consider, the leading cases in this area.
A good answer to this question would…
be divided as detailed below.
a) In light of the common law’s historic formalism and corresponding failure to
prevent abuse of mortgagors’, often vulnerable, position, equity gradually
developed, a body of case law protecting what became known as, the
equity of redemption. This comprises the totality of rights retained by the
mortgagor during the currency of a mortgage, despite the mortgagee
formally acquiring what appears to be full title and the mortgagor technically
retaining nothing, apart from a contractual right to redeem. Equity’s
determination to ensure there were ‘no clogs or fetters on the equitable
right to redeem’ was the means by which it gave substance to the equity of
redemption and turned, what formally comprised a transfer of title, into
what, in substance, was limited to security for a debt; requiring the
mortgage to be repayable and the security preserved so that it could be
returned in the same state it was when given. Problem questions like this
require candidates to consider case law rooted in, but often extending
beyond, the ‘no clogs or fetters’ doctrine and test students’ understanding
of equity’s historic role and current function, particularly in light of a
willingness, over the last century or so, to increasingly embrace freedom of
contract, mirroring land’s gradual move from feudal relationship to
mercantile resource.
i) Solus ties were traditionally limited to the duration of the mortgage for
otherwise the security was not returned in the same state as when it
was given. Under Biggs v Hoddinott [1898] and Noakes v Rice [1902]
therefore, free houses can be tied to breweries for the duration of a
mortgage but not beyond; for otherwise a free house ends up as a tied

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Examiners’ reports 2016

one. Under that approach the tie to Babylon Brewers (which appears to
be unlimited) would be limited to the duration of the mortgage.
However, under Kreglinger v New Patagonia Meat & Cold Storage
[1914] a more modern approach was embraced and a solus tie that
lasted beyond the mortgage permitted, provided the tie was in
substance independent of the mortgage transaction. Thus a right of first
refusal, giving the mortgagee the right to purchase any sheepskins the
mortgagor chose to sell, at the market price, was permitted to last
beyond the duration of the mortgage because the transaction was in
substance independent of the mortgage transaction (i.e. stood up on its
own terms). The mortgagor, after all, only sold what he wanted to sell
and received the full market price for what was bought. You might
therefore argue that requiring Ed to buy his spirits from Babylon
Brewers at the market price similarly stands up on its own terms, as Ed
is not forced to buy more than he needs, nor pay more than the market
rate. However the facts are distinguishable from Kreglinger, as this
clause limits Ed to buying his spirits from one supplier and therefore
does not allow him to stock spirits that Babylon Brewers do not supply.
The term would therefore most probably be limited to the duration of the
mortgage with Biggs and Noakes applied and Kreglinger distinguished.
Although solus ties may be challenged as restraints to trade (see Esso
Petroleum v Harpers Garage [1968]) this is unlikely to succeed in
circumstances where the courts recognise the commercial realities;
such as those that operate in this sector where drinks companies
clearly require incentives in provide loan finance to the bar and pub
industry.
ii) The essence of a mortgage is redeemability, whereby the security is
released on repayment of the debt. Equity will consequently not permit
a mortgage to include an option, giving the mortgagee the right to
purchase the security, as that would be the ultimate clog on the Equity
of redemption. It was consequently held in Samuel v Jarrah Timber
[1904] that an option is repugnant to the very notion of a mortgage
(unless contained in a separate and independent transaction – see
Reeve v Lisle [1902]). This is because the option would give ultimate
dominium over the security to the mortgagee who could decide whether
or not the mortgagor ever resumed unencumbered ownership. The
same does not, however, hold for a right of first refusal (also known as
the right of pre-emption) because in that situation the mortgagor retains
dominium and the right to decide whether or not to part with the
security. Under a right of pre-emption the mortgagee cannot force the
mortgagor to sell and the mortgage is consequently not irredeemable.
The term we are considering is therefore distinguishable from Jarrah
Timber and unlikely to be held repugnant, although it would only be
permitted for the duration of the mortgage and would not be
enforceable after repayment of the debt.
iii) Postponement of the right to redeem is not itself repugnant to the
notion of a mortgage provided the mortgagor can eventually get back
what he mortgaged. In Knightsbridge Estates v Byrne [1912], for
example, a 40-year postponement of the right to redeem the mortgage
of a fee simple was consequently not struck down as, at the end of the
mortgage, the mortgagor retained an unencumbered fee simple. That
case should, however, in problems such as this be contrasted with
Fairclough v Swan Breweries [1940], where a postponement lasting
less than half that time, concerning the mortgage of a leasehold estate,

15
was struck down, as the lease would have had no more than six weeks
to run by the time the mortgage could first have been redeemed.
Consequently, with a diminishing asset such as a leasehold estate,
postponement might be struck down on the basis that the right to
redeem is illusory, depending upon the time remaining on the lease at
the point where the mortgage may first be redeemed. Whether,
however, a 19-year postponement, on a mortgage with 22 years
remaining on the demise, would likewise be struck down is open to
debate (and frankly we do not mind which way you decide; provided
you see the issue, do not sit on the fence and give reasons for making
your decision).
b) A power of sale will normally be expressly included in the mortgage but
otherwise implied under s.101 where it will always arise provided the
mortgage is made by deed, no contrary intention appears on its face and
the contractual date for payment has passed or at least one instalment is in
arrears. It then becomes exercisable under s.103 if, alternatively: three
months have passed since notice requiring repayment has been served
and is due; if interest repayments due are in arrears for two months; or (as
here re the solus tie) if another term has been breached. Babylon Brewers
could exercise their right to take possession and organise a sale although a
private sale to Proud Prinnies simply in response to their initial enquiry
would be highly unlikely to fulfil Babylon Brewers equitable duty to get the
best price reasonably obtainable. Babylon Brewers would be best advised
to exercise their right to possession (as vacant possession is likely to
maximise the selling price) and sell by auction, which, provided it is suitably
advertised, would achieve a swift sale whilst fulfilling their duty to Ed. If he,
however, is keen to sell the property himself he would be best advised to
apply to the court for an order of sale under LPA, s.91. In Mortgage
Services v Palk [1993] the Court of Appeal held that in such circumstances
the court had a wide, discretionary power, under s.91 to suspend any
possession proceedings by the mortgagee, and, consequently, provided the
court was satisfied that Ed was seeking possession to effect a sale (rather
than attempting to simply delay the inevitable) and that his plan was
practical it might well be persuaded to exercise its discretion accordingly.
However, according to Cheltenham & Gloucester BS v Krauz [1997], there
is no such power under s.91 and, unless the court has power to do so
under the Administration of Justice Act 1970, s.36, the court cannot
suspend possession proceedings brought by the mortgagee. On that
reading of the law, Ed will consequently not be able to resist any
possession proceedings brought by Babylon Breweries as the bar premises
do not appear to include ‘a dwelling house’ as required under s.36.
Poor answers to this question…
failed to see the underlying concepts upon which the case law is built and provided
simplistic answers that often failed to consider the statutory framework under which
the power of sale operates.
Question 8
In 2008 five solicitors, Sam, Tarquin, Ursula, Venus and Zachary bought
Tumbledown House as a place to stay in London during the week as they
worked too many hours each day at Fat Chance, a solicitors firm, to commute
from their homes in the country. Sam and Tarquin each paid 40% of the
purchase price and Ursula 20%, whilst Venus and Zachary paid nothing. The
house was conveyed to the five of them as beneficial joint tenants.

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Examiners’ reports 2016

In 2011 Sam went to work abroad. He sent a letter to Ursula, Tarquin, Venus
and Zachary saying that he wanted Tumbledown House to be sold
immediately so that he could ‘take his 40%’. The note was sent by standard
post to Tumbledown House and was opened by Ursula who immediately
threw it away without showing it to the others. On emptying the bin Venus
discovered the note and sent an email, which she mistakenly sent to
everyone at Fat Chance, telling them that she was hurt not to have been
consulted and had consequently decided to sell her share of Tumbledown
House with immediate effect. However a few days later she discovered she
was pregnant and decided not to go through with her plans to leave.
In 2012 Ursula died in a car crash on the way to the christening of Venus’s
daughter. Her will left all of her property to Tarquin.
You are consulted by Sam, who has returned to the UK and wants to resume
living in Tumbledown House. However, Tarquin and Zachary have told him
that, since being made redundant, they have agreed to sell Tumbledown
House, although Venus is currently refusing to move out.
Advise Sam:
a) as to the effect of the above events on the legal estate and equitable
interests in Tumbledown House; and
b) whether Tarquin and Zachary are entitled to exclude him and Venus
from living there and whether there is anything he can do to prevent
a sale.
General remarks
This is a standard question on co-ownership which was very popular amongst
candidates and received a wide range of responses including the good, the poor
and the middling. Many answers included diagrams, which can, indeed, assist your
discussion (although poor ones will only hinder it!).
Law cases, reports and other references the examiners would expect you to use
Law of Property Act 1925, Trusts of Land & Appointment of Trustees Act 1996, Re
Drapers Conveyance [1969], Harris v Goddard [1983], Kinch v Bullard [[1998],
Goodman v Gallant [1986], EON UK Plc v Gilesports Limited [2012], Williams v
Hensman [1861].
Common errors
A question like this is full of cunning (and, frankly, often not so cunning!) traps which
you should be on the look out for and do your best to avoid. For example, any
candidate choosing to answer a question on co-ownership should be aware of the
right of survivorship that applies in joint tenancies. However, a sizeable minority of
students still thought there could be severance by testamentary disposition (i.e. a
will), even though that is, of course, utterly incompatible with survivorship. Some
students, despite the express declaration of beneficial ownership, even argued, on
the basis of unequal contributions, that there was a beneficial tenancy in common
from the outset which meant there was, of course, almost nothing further to say
under (a). Whilst others, after likewise finding a beneficial tenancy in common, still
sought to discuss its subsequent severance, which is odd to say the least! Such
mistakes damage the candidate’s credibility in the eyes of the examiner and there is
really very little excuse for falling into such avoidable errors. The trick is to read
through the problem and be on the lookout for what are (to be honest) pretty
predictable traps. It is also important to think about the words you employ. The
notion of shares is incompatible with the logic of joint ownership and thus you
should avoid using the term when dealing with joint tenancies (with the exception of
‘acting upon one’s “share”’ where the logically inappropriate term has been

17
hallowed by time!). By the same logic, the term undivided shares refers to a
tenancy in common (where the shares are physically undivided) but some
students wrongly use the term when referring to joint tenancies.
A good answer to this question would…
deal with parts (a) and (b) separately.
a) Under LPA 1925, s.34, the first four named in the conveyance (presumably Sam,
Tarquin, Ursula and Venus) hold as legal joint tenants on trust for themselves and
Zachary as beneficial joint tenants, notwithstanding their unequal contributions, on
the basis of an express declaration of trust under Goodman v Gallant [1986].
Figure 1
Law S+T+U+V

Equity S+T+U+V+Z

In discussing the note you need to establish whether Sam has served a statutory
written severance in accordance with LPA ss.36(2) and 196. You are told that the
letter was sent by ‘standard post’ and thus there is no opportunity to claim (as some
attempted) that the letter was sent by registered post and governed by s.196(4). As
a standard letter it is, in contrast, governed by s.196(3) and deemed served when
left at the remaining joint tenants’ last place of abode (i.e. Tumbledown House) or
place of work (Fat Chance). The letter is not required to take any particular form (Re
Drapers Conveyance [1969]) but must, as here, display an immediate desire to
sever (Harris v Goddard [1983]). Please remember it is deemed to take effect the
moment it is delivered (and not earlier e.g. on posting, nor later e.g. on reading) as
demonstrated in Kinch v Bullard [1998]. Sam consequently served a valid statutory
severance unless you take the Megarry & Wade view that, under a strict reading of
s.36(2), written severance can only occur where the legal and beneficial interest are
vested in the same legal and beneficial owners. If one rejects that, arguably, too
pedantic an approach, severance occurred the moment the letter arrived at
Tumbeldown, before Ursula read it and notwithstanding it subsequently being
thrown away, nor Sam’s mistake regarding the 40 per cent. As many students
appreciated, a joint tenancy is severed in proportion to the number of joint tenants,
and not their initial contribution, and thus Sam now owns a 20 per cent share in the
beneficial interest (despite his 40 per cent contribution) with the others continuing to
jointly own the remaining 80 per cent.
Figure 2
Law
S+T+U+V

Equity 1/5 S 4/5 T+U+V+Z

Turning to the email sent by Venus, there are a number of difficulties in holding that
this also constitutes a valid statutory severance. Under EON UK Plc v Gilesports
Limited [2012], Mr J Arnold sitting in the chancery division held that an email was
not a valid form of notice under s.196(3). Some candidates tried to argue, however,
that it might come with s.196(4) due to the fact that an email’s delivery is recorded
and, while the examiners regarded this as an imaginative argument (for which

18
Examiners’ reports 2016

candidates gained credit), it seems unlikely to succeed in practice as the term


registered letter, as used in the Act, clearly refers to the form, rather than the
substance, of the communication. Even if the court was unwilling to follow EON,
there is doubt as to whom the email was addressed. It is therefore questionable, in
the absence of evidence showing that Venus deliberately and specifically
communicated with Tarquin, Ursula and Zachary, to submit that she had fulfilled the
conditions of s.36(2) and ‘give[n]’ them notice of her desire to sever. Whilst her later
change of mind would have no bearing on a validly served notice, it could possibly
be used in these circumstances to buttress the argument that she failed to give
them formal notice and lacked any serious intent to do so. Taking all this into
account, it seems likely that a court would hold that Venus has not severed her
interest (but students who determined otherwise would not be penalised provided
their analysis remained internally consistent). A number of candidates sought to
argue that, whilst the email was not a valid form of statutory severance, it came
within one of the three forms of common law severance as recognised in Williams v
Hensman [1861] even though: it was not irrevocable (as required under operating
on one’s ‘share’); there was no agreement (as required under mutual agreement)
nor a continuing negotiation/dialogue (as required under mutual conduct).
Proceeding on the basis that Venus did not sever her share, the next issue
concerns Ursula’s death, where her interest consequently dies with her under the
right of survivorship as held in Re Caines [1978]. As a joint tenant, both at law and
in equity, she therefore disappears from both titles (which is a better way of putting
it than saying her share(!) passed to the others). The legal title is henceforth
vested jointly in Sam, Tarquin and Venus, who hold on trust for Sam, who retains
his 20 per cent as a tenant in common, alongside just Tarquin, Venus and Zachary
who now jointly own the remaining 80 per cent. Ursula’s testamentary gift to Tarquin
is, of course, an irrelevance in respect of her interest in Tumbeldown as, once the
will became operative, she no longer had any interest.
Figure 3
Law
S+T+ U +V

Equity 1/5 S 4/5 T+ U +V+Z

b) This section simply requires students to apply TOLATA 1996. Under ss.12 and
13, Tarquin would not be able exclude the other two trustees, Sam and Venus,
whilst Zachary, who is only a beneficiary, would appear to have even less standing
in the matter. A consultation with the beneficiaries under s.11 would not get very far
although there would be a small technical majority in favour of sale. Practically,
however, that would have little bearing as, where there is disagreement amongst
the trustees, the only way to effect a sale would be for Tarquin and/or Zachary to
apply to the court under s.14. In exercising its discretion the court would be required
to consider: the reason why Tumbledown was acquired (s.15(1)(a)); the extent to
which the purpose had changed (s.15(1)(b)); and the welfare of Venus’s child (s.15
(1)(c)), along with any other factors the court considered relevant. It is consequently
difficult to determine what the court would decide without knowing more about the
parties and their relative position. However, in light of Tarquin and Zachary’s
redundancies, it seems likely that the court would lean towards sale, sooner rather
than later, provided there were no exceptional circumstances. Given that no one
had been made bankrupt, there was no opportunity, as a number of candidates
unfortunately did, to turn to s.335A Insolvency Act 1986.

19
Poor answers to this question…
became increasingly muddled, fell into the various traps and often failed to mention
TOLATA.
Student extract
S, T, U and V as the first 4 named on the conveyance hold the legal title
jointly under s.34(2) LPA which states that a legal title in land may only be
held jointly by up to 4 persons. The facts state that the parties contributed
unequally to the purchase price and therefore there would usually be a
presumption that the beneficial interest was held under a tenancy in common
in proportion to their contributions under a resulting trust or possibly some
other proportions under a constructive trust. It was however stated in the
conveyance that the beneficial interest is to be held jointly and thus S,T,U,V
and Z hold the equitable interest under a joint tenancy as the contributions
are then an irrelevance (Goodman v Gallant)...
…S sent a letter stating he wanted Tumbledown sold immediately. S.36(2)
says severance must be in writing. It must be properly served and this occurs
when it is received. The communication must indicate a wish to server
immediately (Burgess v Rawnsley). When severance occurs only the
severing party becomes a tenant in common. The others remain as JTs So S
acquires a 20% share and U, T, V, Z hold the remaining 80% as JTs….
…V sent an email indicating that she wanted to sell with immediate effect.
However this was sent to everyone at Fat Chance. One might not think that
the notice was not served on all the other joint tenants but the facts state they
all worked there. It does not matter whether they have read it as it was
delivered. The effect of V’s email is a severance and she gets a 20% share in
the beneficial interest similar to S.
U dies in a car crash leaving her property to T. Severance cannot be by will
(Re Caines)….
Comments on extract
This is an extract from a clear and succinct essay that achieved a sound 2:1 overall.
The candidate clearly knows the law although the answer would benefit from more
discussion re the issues. On V’s possible severance, for example, the candidate
needed to think about the policy issues regarding the recognition of emails under
s.196 and should also have discussed EON. There is also an incorrect citation of
Burgess, which is not an authority regarding statutory severance. The essay would
also have profited from the candidate briefly explaining why each authority cited is
relevant. Please note the candidate was not penalised for deciding that V’s email
amounted to a severance, as essays are not marked down when there is room (as
there often is) for disagreement in applying the law to the facts under consideration.

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