Экзамен зачет учебный год 2023 / Dixon, Principles of Land Law
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1.6THE DISTINCTION BETWEEN REGISTERED
AND UNREGISTERED LAND |
16 |
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1.6.1 |
Registered land |
16 |
1.6.2 |
Unregistered land |
17 |
1.7A DIAGRAMMATIC REPRESENTATION
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OF THE 1925 PROPERTY LEGISLATION |
19 |
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SUMMARY OF CHAPTER 1 |
21 |
2 |
REGISTERED LAND |
25 |
2.1 |
INTRODUCTION |
25 |
2.2THE NATURE AND PURPOSE OF THE SYSTEM
OF REGISTERED LAND |
27 |
2.2.1 Under the Land Registration Act 2002 |
29 |
2.3THE SO CALLED ‘THREE PRINCIPLES’ OF
REGISTERED LAND |
30 |
|
2.3.1 |
The mirror principle |
30 |
2.3.2 |
The curtain principle |
31 |
2.3.3 |
The insurance principle |
32 |
2.4AN OVERVIEW OF THE REGISTERED LAND SYSTEM
UNDER THE LAND REGISTRATION ACT 1925 |
33 |
2.4.1Registrable interests (including titles) under the Land
|
Registration Act 1925 |
34 |
2.4.2 |
Registered charges |
35 |
2.4.3 |
Overriding interests |
36 |
2.4.4 |
Minor interests |
37 |
2.5 THE OPERATION OF REGISTERED LAND: TITLES |
38 |
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2.5.1 |
Absolute title |
39 |
2.5.2 |
Good leasehold title |
40 |
2.5.3 |
Possessory title |
40 |
2.5.4 |
Qualified title |
41 |
2.5.5 The new owner or mortgagee (the purchaser) |
41 |
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2.5.6 |
The third party |
41 |
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2.6THE OPERATION OF REGISTERED LAND:
OVERRIDING INTERESTS |
43 |
2.6.1 Easements and profits: s 70(1)(a) |
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of the Land Registration Act 1925 |
44 |
2.6.2Rights in the nature of public or residual feudal
obligations: s 70(1)(b), (c), (d), (e) of the Land |
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Registration Act 1925 |
46 |
2.6.3 Adverse possession: s 70(1)(f) of the Land |
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Registration Act 1925 |
46 |
2.6.4Rights and actual occupation: s 70(1)(g) of the Land
Registration Act 1925 |
47 |
2.6.5Legal leases for 21 years or less: s 70(1)(k) of the
Land Registration Act 1925 |
52 |
2.6.6Further overriding interests under s 70(1) of the Land
Registration Act 1925 |
52 |
2.6.7The bindingness of overriding interests under the
Land Registration Act 1925 |
53 |
2.7 THE OPERATION OF REGISTERED LAND: |
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MINOR INTERESTS UNDER THE LAND |
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REGISTRATION ACT 1925 |
60 |
2.7.1 Restriction: s 58 of |
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the Land Registration Act 1925 |
61 |
2.7.2 Inhibition: s 57 of |
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the Land Registration Act 1925 |
61 |
2.7.3 Notice: s 49 of |
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the Land Registration Act 1925 |
62 |
2.7.4 Caution: ss 54, 55, 56 of |
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the Land Registration Act 1925 |
62 |
2.7.5 Enforcing minor interests |
63 |
2.8 THE OPERATION OF REGISTERED LAND: |
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OVERREACHING |
68 |
2.8.1 The right must be capable of being overreached |
69 |
2.8.2 The statutory conditions for overreaching |
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must be fulfilled |
69 |
2.8.3 The consequences of failing to overreach |
71 |
2.9 RECTIFICATION OF THE REGISTER |
72 |
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Contents |
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2.10 INDEMNITY UNDER THE LAND REGISTRATION |
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ACT 1925 |
75 |
2.11 |
AN OVERVIEW OF THE LAND REGISTRATION |
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ACT 2002 |
78 |
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SUMMARY OF CHAPTER 2 |
81 |
3 |
UNREGISTERED LAND |
85 |
3.1INTRODUCTION TO THE SYSTEM OF UNREGISTERED
CONVEYANCING: UNREGISTERED LAND |
86 |
3.1.1 What is unregistered land? |
86 |
3.2 AN OVERVIEW OF UNREGISTERED LAND |
86 |
3.2.1 Estates in unregistered land |
86 |
3.2.2 Interests in unregistered land: rights over |
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another person’s estate |
87 |
3.2.3 Legal rights |
87 |
3.2.4 Equitable rights which are registrable |
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under the Land Charges Act 1972 |
88 |
3.2.5 Equitable rights which are not registrable under |
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the Land Charges Act 1972 because they |
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are subject to overreaching |
88 |
3.2.6 Equitable rights which are neither overreachable |
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nor registrable under the Land Charges Act 1972 |
88 |
3.3 TITLES IN UNREGISTERED LAND |
89 |
3.4 THIRD PARTY RIGHTS IN UNREGISTERED LAND |
90 |
3.5THE PURCHASER OF UNREGISTERED LAND
AND THE PROTECTION OF LEGAL RIGHTS |
92 |
3.6THE PURCHASER OF UNREGISTERED LAND AND THE PROTECTION OF EQUITABLE RIGHTS:
THE LAND CHARGES ACT 1972 |
93 |
3.6.1The classes of registrable charge under
the Land Charges Act 1972 |
95 |
3.6.2 The effect of registering a land charge |
98 |
3.6.3The consequences of failing to register
a registrable land charge in general |
100 |
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3.6.4 |
The voidness rule |
101 |
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3.6.5 |
Other registers |
103 |
3.7 |
OVERREACHABLE RIGHTS |
104 |
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3.8 |
A RESIDUAL CLASS OF EQUITABLE INTERESTS |
106 |
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3.9 |
INHERENT PROBLEMS IN THE SYSTEM |
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OF UNREGISTERED LAND |
108 |
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3.10 A COMPARISON WITH REGISTERED LAND |
109 |
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SUMMARY OF CHAPTER 3 |
111 |
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4 |
CO-OWNERSHIP |
115 |
4.1THE NATURE AND TYPES OF CONCURRENT
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CO-OWNERSHIP |
116 |
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4.2 |
JOINT TENANCY |
116 |
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4.2.1 |
The right of survivorship (the ius accrescendi) |
117 |
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4.2.2 |
The four unities |
117 |
4.3 |
TENANCY IN COMMON |
118 |
4.4THE EFFECT OF THE LAW OF PROPERTYACT 1925 AND THE TRUSTS OF LAND AND APPOINTMENT
OF TRUSTEES ACT 1996 |
119 |
|
4.4.1 |
Before 1 January 1926 |
120 |
4.4.2 |
On or after 1 January 1926 |
120 |
4.5THE DISTINCTION BETWEEN JOINT TENANCY AND TENANCY IN COMMON IN PRACTICE:
THE EQUITABLE INTEREST |
122 |
4.6 THE STATUTORY MACHINERY AND |
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THE OPERATION OF CO-OWNERSHIP |
123 |
4.7THE NATURE OF THE UNSEVERABLE LEGAL JOINT
TENANCY: THE TRUST OF LAND |
124 |
4.8THE ADVANTAGES OF THE 1925 AND 1996
LEGISLATIVE REFORMS |
127 |
4.9THE DISADVANTAGES OF THE TRUST OF LAND AS A
DEVICE FOR REGULATING CO-OWNERSHIP |
129 |
4.9.1 Disputes as to sale |
129 |
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4.9.2 |
When is it likely that a court will order sale? |
131 |
4.9.3 |
The special case of bankruptcy |
132 |
4.9.4The position of a purchaser who buys
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co-owned land: when overreaching occurs |
134 |
4.9.5 |
If consents are required |
135 |
4.9.6 |
If consents are not initially required |
137 |
4.9.7 |
When overreaching does not occur |
137 |
4.9.8The position of the equitable owners:
problems and proposals |
139 |
4.9.9The position of the equitable owners faced with
overreaching: the problem in perspective |
141 |
4.9.10 The question of possession |
142 |
4.9.11 The payment of rent |
143 |
4.9.12 A summary of the Trusts of Land and |
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Appointment of Trustees Act 1996 |
143 |
4.10THE EXPRESS AND IMPLIED CREATION OF CO-OWNERSHIP IN PRACTICE: EXPRESS,
RESULTING AND CONSTRUCTIVE TRUSTS |
144 |
4.10.1 Express creation |
144 |
4.10.2Creation of co-ownership even though
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the legal title is in one name only |
146 |
4.10.3 |
Establishing the equitable interest |
146 |
4.10.4 |
The express trust |
147 |
4.10.5The immediate, the deferred and the indirect
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‘purchase money’ resulting trust |
147 |
4.10.6 |
The constructive trust |
149 |
4.10.7 |
Where there is no interest |
151 |
4.10.8The nature of the interest established: joint
tenancy or tenancy in common |
153 |
4.11 SEVERANCE |
153 |
4.11.1 |
By statutory notice: s 36(2) of |
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the Law of Property Act 1925 |
154 |
4.11.2 |
By an act operating on his own share |
155 |
4.11.3Where joint tenants agree to sever by
‘mutual agreement’ |
155 |
4.11.4 By mutual conduct |
156 |
SUMMARY OF CHAPTER 4 |
157 |
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5 |
SUCCESSIVE INTERESTS IN LAND |
163 |
5.1 |
WHAT IS SUCCESSIVE OWNERSHIP OF LAND? |
163 |
5.2 |
SUCCESSIVE INTERESTS: IN GENERAL |
163 |
5.2.1Successive interests under the Trusts of Land
and Appointment of Trustees Act 1996 |
164 |
5.3SUCCESSIVE INTERESTS UNDER THE OLD REGIME:
THE STRICT SETTLEMENT |
168 |
|
5.3.1 |
The essential characteristics of settled land |
169 |
5.3.2 |
The specific attributes of settled land |
169 |
5.3.3The creation of strict settlements under the Settled
Land Act 1925 |
170 |
5.3.4The position of the tenant for life and
the statutory powers |
170 |
5.3.5The role of the trustees of the settlement in
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regulating the powers of the tenant for life |
171 |
5.3.6 |
The fiduciary position of the tenant for life |
172 |
5.3.7 |
Attempts to restrict the |
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powers of the tenant for life |
172 |
5.3.8 |
Protection for the beneficiaries |
173 |
5.3.9 |
Protection for the purchaser of settled land |
174 |
5.3.10 |
The overreaching machinery |
174 |
5.3.11 |
The duties of the trustees of the settlement |
174 |
5.4 THE TRUST OF LAND |
175 |
5.5A COMPARISON BETWEEN THE OLD STRICT SETTLEMENT UNDER THE SETTLED LAND ACT 1925 AND THE NEW TRUSTS OF LAND AND
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APPOINTMENT OF TRUSTEES ACT 1996 REGIME |
175 |
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SUMMARY OF CHAPTER 5 |
177 |
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6 |
LEASES |
181 |
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6.1 |
THE NATURE OF A LEASE |
181 |
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6.2 |
THE ESSENTIAL CHARACTERISTICS OF A LEASE |
183 |
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6.2.1 |
Exclusive possession |
183 |
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6.2.2 For a term certain |
189 |
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6.2.3 |
Periodic tenancies |
190 |
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6.2.4 Statutory provisions concerning certain terms |
190 |
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6.2.5 |
Rent |
191 |
6.3 THE CREATION OF LEGALAND EQUITABLE LEASES |
192 |
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6.3.1 |
Introductory points |
192 |
6.3.2 |
Legal leases |
192 |
6.3.3 |
Equitable leases |
195 |
6.3.4The differences between legal
and equitable leases |
198 |
6.4 LEASEHOLD COVENANTS |
200 |
6.4.1The separate nature of the ‘benefit’
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of a covenant and the ‘burden’ of a covenant |
201 |
6.4.2 |
Two sets of rules concerning the |
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enforceability of leasehold covenants |
201 |
6.5RULES FOR LEASES GRANTED
BEFORE 1 JANUARY 1996 |
202 |
6.5.1Liability between the original landlord and
the original tenant: the general rule |
202 |
6.5.2The continuing liability of the original tenant
throughout the entire term of the lease |
202 |
6.5.3The continuing rights and obligations of the original
landlord throughout the term of the lease |
206 |
6.5.4The assignment of the lease to a new tenant for
pre-1996 leases |
206 |
6.5.5The claimant and defendant must be
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in ‘privity of estate’ |
207 |
6.5.6 |
The covenant must ‘touch and concern’ the land |
208 |
6.5.7 |
Special rules |
209 |
6.5.8The assignment of the reversion to a new
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landlord under pre-1996 tenancies |
209 |
6.5.9 |
Section 141 of the Law of Property Act 1925: |
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the benefit of the original landlord’s covenants |
210 |
6.5.10 Section 142 of the Law of Property Act 1925: |
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the burden of the original landlord’s covenants |
210 |
6.5.11 |
Special rules |
211 |
6.5.12 Equitable leases and equitable |
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assignments of legal leases |
212 |
6.5.13 The original landlord and tenant |
213 |
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6.5.14The assignment of the reversion of an
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equitable lease to a new landlord |
213 |
6.5.15 The assignment of the equitable |
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lease to a new tenant |
213 |
6.5.16 |
The position of subtenants |
217 |
6.5.17 |
The Law Commission and proposals for reform |
218 |
6.6THE NEW SCHEME: THE LAW APPLICABLE TO TENANCIES GRANTED ON OR AFTER
1 JANUARY 1996; THE LANDLORD AND
TENANT (COVENANTS) ACT 1995 |
219 |
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6.6.1 General principles of the 1995 Act |
219 |
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6.6.2 The tenant’s position in more detail |
220 |
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6.6.3 |
An assessment of the landlord’s position |
223 |
6.6.4 |
To sum up |
224 |
6.7THE LANDLORD’S REMEDIES FOR BREACH
OF COVENANT |
225 |
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6.7.1 |
Distress |
225 |
6.7.2 Action for arrears of rent |
225 |
|
6.7.3 |
Action for damages |
226 |
6.7.4 Injunction and specific performance |
226 |
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6.7.5 |
Forfeiture |
227 |
6.7.6 |
General considerations |
227 |
6.7.7 Forfeiture for non-payment of rent |
228 |
6.7.8Principles for granting discretionary
relief for non-payment of rent |
230 |
6.7.9Forfeiture for breach of covenants
other than to pay rent |
230 |
6.8 THE TENANT’S REMEDIES FOR |
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BREACH OF COVENANT |
235 |
6.8.1 Damages for breach of covenant |
235 |
6.8.2 Action for an injunction |
235 |
6.8.3 Action for specific performance |
235 |
6.8.4 Retention of future rent |
236 |
6.9 TERMINATION OF LEASES |
236 |
6.9.1 By effluxion of time |
236 |
6.9.2 By forfeiture |
236 |
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6.9.3 |
By notice |
237 |
6.9.4 |
By merger |
237 |
6.9.5 |
By surrender |
237 |
6.9.6 |
By enlargement |
238 |
6.9.7 |
By disclaimer |
238 |
6.9.8 |
By frustration |
238 |
6.9.9 By repudiatory breach of contract |
238 |
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SUMMARY OF CHAPTER 6 |
239 |
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7 THE LAW OF EASEMENTS |
245 |
7.1THE NATURE OF EASEMENTS
AS INTERESTS IN LAND |
245 |
7.2THE ESSENTIAL CHARACTERISTICS
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OF AN EASEMENT |
245 |
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7.2.1 There must be a dominant and a servient tenement |
246 |
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7.2.2 The separation of the dominant |
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and servient tenement |
246 |
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7.2.3 The alleged easement must accommodate |
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the dominant tenement |
247 |
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7.2.4 The alleged easement must ‘be capable |
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of forming the subject matter of a grant’ |
248 |
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7.2.5 Public policy |
250 |
7.3 LEGAL AND EQUITABLE EASEMENTS: FORMALITIES |
251 |
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7.4 |
LEGAL EASEMENTS |
251 |
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7.4.1 Easements created by statute |
252 |
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7.4.2 Easements created by prescription |
252 |
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7.4.3 Easements created by deed/registered disposition |
252 |
7.5 |
EQUITABLE EASEMENTS |
252 |
7.6THE SIGNIFICANCE OF THE DISTINCTION BETWEEN LEGAL AND EQUITABLE EASEMENTS
IN PRACTICE: EASEMENTS AND PURCHASERS |
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OF THE DOMINANT OR SERVIENT TENEMENT |
254 |
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7.6.1 |
Registered land |
255 |
7.6.2 |
Unregistered land |
258 |
7.7 THE CREATION OF EASEMENTS |
258 |
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7.8 |
EXPRESS CREATION |
259 |
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7.8.1 |
Express grant |
259 |
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7.8.2 |
Express reservation |
260 |
7.9 |
IMPLIED CREATION |
260 |
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7.9.1 Implied by necessity: grant and reservation |
261 |
7.9.2Implied by common intention:
grant and reservation |
262 |
7.9.3Easements implied under the rule in
Wheeldon v Burrows: grant only |
263 |
7.9.4Easements implied under s 62 of the Law of
Property Act 1925: grant only |
266 |
7.9.5An example of the creation of easements by s 62 of
the Law of Property Act 1925 |
268 |
7.9.6 A comparison between the rule in Wheeldon |
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v Burrows and s 62 of the Law of |
|
Property Act 1925 |
269 |
7.10 EASEMENTS RESULTING FROM PRESCRIPTION |
269 |
7.10.1General conditions for obtaining an
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easement by prescription |
270 |
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7.10.2 Easements of prescription lie in fee simple only |
270 |
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7.10.3 Use must be ‘of right’, so as to presume the grant |
272 |
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7.10.4 Use must be in the character of an easement |
274 |
7.11 |
METHODS OF ESTABLISHING AN EASEMENT BY |
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PRESCRIPTION |
274 |
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7.11.1 Prescription at common law |
275 |
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7.11.2 Prescription at common law: lost modern grant |
276 |
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7.11.3 The Prescription Act 1832 |
276 |
7.12 THE EXTINGUISHMENT OF EASEMENTS |
278 |
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7.13 A NOTE ON PROFITS À PRENDRE |
278 |
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SUMMARY OF CHAPTER 7 |
279 |
8 |
FREEHOLD COVENANTS |
285 |
8.1 THE NATURE OF FREEHOLD COVENANTS |
285 |
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8.1.1 Positive and negative covenants |
285 |
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