Land law
CHOOSE TWO QUESTIONS:
1. Isha and Ugo purchased their flat in Brighton in 2019 for £410,000. They borrowed £350,000 for 25 years from the Greedy Bank and granted the Greedy Bank a mortgage over their home to secure the loan.
Prior to the pandemic Isha and Ugo both had steady well paid freelance work in the live music industry. This work stopped during 2020 and 2021 and they have been doing other lower paid temporary work to pay bills. They have accumulated mortgage arrears of £20,000 and credit card debts of £10,000 during this period. Isha and Ugo hope they will be able to return to their work in the music industry soon. Ugo has a contract for a six month tour starting in September and Isha has auditions shortly. This morning they received a letter from the Greedy Bank notifying them that the Bank is starting possession proceedings because the Bank’s blanket policy is always to seek a court order for possession once arrears reach £20,000. Isha and Ugo have not had any other communication with the Greedy Bank about the arrears.
Isha and Ugo had difficulty finding a mortgage lender in 2019 because of their credit history and so they accepted some unusual mortgage terms from the Greedy Bank. These included that the capital sum owed at the end of each year would be revalued (upwards or downwards) according to the value of the UK Pound Sterling against a specified foreign currency. In 2020 and 2021 those currency changes resulted in the capital sum owed increasing by 5% in total in addition to the interest owed. Greedy Bank’s letter states that their current policy after taking possession is to let out
repossessed property for a few years instead of proceeding straight to sale and to keep any resulting increase in the value of the property between possession and sale as profit for the Bank.
Isha and Ugo would like to stay in their home or if this is not possible sell their home
themselves immediately. Advise Isha and Ugo.
2. Prior to the pandemic Ezra lived and worked in London. He also rented a cottage by the sea from Ned on a 5 year legal lease. Ezra often used the cottage at weekends to enable him to get out of the city for rest and relaxation. Ned owned the freehold of the cottage and lived next door in a large house called ‘Pippins’ that has extensive facilities including a tennis court and swimming pool. Ned allowed Ezra to use the tennis court and swimming pool when Ezra was at the cottage. Ned also allowed Ezra to park his car at Ned’s house as there was no space for parking at the cottage. There are a few parking spaces at ‘Pippins’ and one space has an innovative induction wireless charging pad set into the ground to charge electric vehicles. Ezra has an electric vehicle and has always parked in this space which charges his car at the same
time.
During the pandemic lockdowns Ezra temporarily moved out of London and spent all his time at the seaside cottage. From March 2020 Ezra worked from there and used all the facilities at ‘Pippins’ very regularly. In 2021 Ned suggested that Ezra might like to make a permanent move to the cottage and purchase the freehold. Ned and Ezra did the conveyancing themselves transferring the cottage to Ezra, but without discussion or agreement about the tennis court, swimming pool or parking.
Last month Ned sold the freehold of ‘Pippins’ to Gemma and moved abroad. Ezra and Gemma have argued over the arrangements for the electric car charging as Gemma also has an electric car. After the argument, Gemma told Ezra to stop using the tennis court, swimming pool and parking. Gemma has threatened to block the drains from the cottage that pass under the gardens of ‘Pippins’ to reach the mains drains if she sees Ezra on her land.
Advise Ezra.
3. ‘Despite enduring criticism of the law of freehold covenants, there has been little movement towards reform. Lawyers seem resigned to the law’s flaws.’
C. Bevan, Land Law (OUP 2020) 492
Critically analyse the ‘flaws’ in the law of freehold covenants. Include within your answer reference to the Law Commission Report No. 327, Making Land Work: Easements Covenants and Profits a Prendre (2011).
4. ‘In cases where there is no bankruptcy, the courts will be generous in cases involving children. There is no need to show that circumstances are exceptional in order to justify a delay to sale.
Rather, the courts will simply look at the whole picture in the round to assess what is the best thing to be done.’
E. Lees, The Principles of Land Law (OUP 2020) 523
Discuss the application of ss.14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996 critically, with reference to this statement.
