Candidates must attempt TWO Questions. All responses to the questions are equally
weighted, so you should spend an equal amount of words and amount of time answering each
question. It should take you 4 1/2 hours to complete this paper. The word limit for the paper
is 4,500 words.1, “Recent decisions have stretched the essential characteristics of an easement
far beyond the conservative limits described by Lord Evershed in 1955.”
To what extent do you agree with this statement?
2, Carole is the owner of the Exotic estate, originally around 1,000 hectares in
size. In 1963 her grandfather sold the fee simple of a house and some
surrounding land on the estate to Joe, subject to a covenant that the property
should be used as a private dwelling house only. In 2015, Carole sold the fee
simple of a four hectare plot to John, subject to a covenant that not more than
5 dwelling houses could be built on the land.
Travis purchased the house from Joe in 2016 and has started to offer donkey
rides to tourists visiting the Exotic estate in summer. He has also obtained
permission to open a riding stable and fish and chip shop. Meanwhile, John has
obtained planning permission to build a hotel, wellness retreat and 30 holiday
lodges on his plot. Travis and John both object to one another’s activities and
Carole, who has a riding stable and restaurant of her own on the Exotic estate,
wishes to prevent both of them from breaking the covenants.
Consider whether any of the parties could succeed in an action for breach of
covenant and if so, what further measures are available for the unsuccessful
party in such an action?
3, Marie has recently bought the freehold of Konmari Towers. When she first
viewed the property she observed a number of interesting features. The hall of
the property was decorated with a number of tapestries, which were hanging
from small brass hooks on the wall. The kitchen contained several floor to
ceiling fitted cabinets, with a separate, freestanding range cooker and wooden
kitchen table.
The garden of the property included a number of wooden holiday chalets, along
with an ornamental pond filled with koi carp and wild fish.
When she moved into the property Marie discovered that the tapestries had
been removed, along with the brass hooks. All items were removed from the
kitchen including the range cooker, cabinets and table. The chalets have been
removed from the garden and the pond has had all fish removed. The pond liner
has also been removed and the water drained.
Advise Marie.
Please Turn Over4,
5,
6,
7,
“Developments in law and technology have finally laid rest to the notion that
a landowner owns their property from the heavens above down to hell below.”
To what extent do you agree with this statement?
“As the judgment of Baroness Hale of Richmond JSC demonstrates (and as
indeed the disquiet expressed by Lord Browne-Wilkinson and others in the
Prudential case itself shows), the law is not in a satisfactory state. There is no
apparent practical justification for holding that an agreement for a term of
uncertain duration cannot give rise to a tenancy… There is therefore much to
be said for changing the law, and overruling what may be called the certainty
requirement, which was affirmed in the Prudential case, on the ground that, in
so far as it had any practical justification, that justification has long since gone,
and, in so far as it is based on principle, the principle is not fundamental enough
for the Supreme Court to be bound by it.”
– Lord Neuberger MR, in Mexfield Housing Co-operative Ltd v Berrisford
[2011] UKSC 52, at [34]
In the light of this statement and with reference to case law where appropriate,
explain and then critically evaluate the certainty requirement in the context of
leases.
Critically examine the decisions of the Court of Appeal and the House of Lords
in Midland Bank Trust Co Ltd v Green (No. 1) [1980] Ch 590, [1981] AC 513.
Frank was the registered proprietor of a beautiful five-bedroom detached
house and its surrounding ground. Frank was dying in 2020 and wanted to leave
the property to his son George and his daughter Helen. George had been
travelling around the world for more than a year by then and could not be
reached. He left following a bitter argument with all other family members in
2018, stating that he would never return to the country so long as Frank was
alive. Frank transferred the property to Helen as the sole legal owner to hold
it on trust for George and herself in equal shares. Helen was duly registered
as proprietor in August 2020. Frank died in October 2020.
With the whereabouts of George still unknown several months after Frank
died, Helen wanted to sell the property because it was very expensive to
maintain such an old house unoccupied. Issac visited the property on two
occasions and decided to buy itfor £600,000. Helen specifically told Issac about
George’s situation. Both parties agreed that it was not feasible to wait
indefinitely for George given that nobody had heard from him for a while,
despite various efforts of contact having been made.
Please Turn OverThe conveyance of the property was complete at noon on 13th April 2021 in
the office of Issac’s conveyancer. Issac went to the property in the afternoon.
To his surprise, he found George there in the property. George only learnt of
his father’s death recently from other sources and decided to return home.
He arrived on 9th April when no one was present at the property, let himself
in with a key that is always hidden underneath a flowerpot, and has not left it
since. He has not talked to Helen and probably does not want to in the
foreseeable future. But he does intend to stay in the property so far as he can.
Issac was duly registered as the proprietor of the property on 21st April. There
has never been any entry on the registered title, before or after that date,
regarding George or any interest held by him. Advise Issac as to whether he
would be bound by any interest of George’s.
8, Reese and her husband Cyrus live together in their jointly owned home,
Crossing Cottage. In 2018, having spent a number of years working as an
independent contractor, Cyrus decided that it was time for a change of career.
He decided to set up a new business called ‘Re-Tail’ specialising in ‘upcycling’
old furniture. In order to secure sufficient funds to start his business Cyrus
approached Tom from Nook Bank seeking to re-mortgage Crossing Cottage.
Tom agreed to loan Cyrus £200,000, with Crossing Cottage as security.
Shortly after this Cyrus organised a romantic picnic and told Reese his
excellent news. He chose to tell her that the loan was for £100,000 rather than
the full amount he had discussed with the Nook Bank, not wanting to alarm
her. Reese told Cyrus that she was concerned about the size of the loan and
that she didn’t think that it was a good idea for them to put their home at risk.
Cyrus didn’t take this news well and said “I thought you trusted me, I thought
you believed in me. If you won’t agree then maybe I should leave and be with
someone who does”. He then spent the next three months repeating similar
statements. Tired of the constant feeling of pressure, Reese agreed to the
mortgage.
Reese and Cyrus met with Tom at Nook Bank and their solicitor Raymond.
Raymond asked to discuss the mortgage with Reese in a separate meeting room
but Cyrus insisted on being present. After discussing various aspects of the
mortgage contract Reese reluctantly agreed to sign the contract.
Cyrus falls behind on the mortgage repayments as his business has failed to
make any profit. In January 2020 Nook Bank notified the couple that they will
be seeking possession of Crossing Cottage.
Advise Reese.
Please Turn Over9, The common intention constructive trust and proprietary estoppel “have been
developed separately without cross-fertilisation between them: but they rest
on the same foundation and have on all other matters reached the same
conclusions”.
Critically analyse this statement.
END OF PAPE
