| Acknowledgements |
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xxix | |
| Table of Cases |
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xxxi | |
| Table of Statutes |
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xli | |
| Table of Statutory Instruments |
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xlv | |
| Part 1 Introduction: Estates And Interests In Land |
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1 Introduction to the Types of Property Rights in Land |
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3 | (23) |
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1.1 Real Property and Personal Property |
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7 | (1) |
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7 | (1) |
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7 | (1) |
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1.2 Property Rights which Give Immediate Use and Enjoyment of Land |
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8 | (2) |
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8 | (1) |
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9 | (1) |
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1.3 Property Rights against Land Owned by Other People |
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10 | (9) |
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10 | (1) |
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1.3.2 Restrictive Covenants |
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11 | (1) |
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11 | (1) |
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11 | (1) |
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12 | (1) |
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1.3.6 Rights of Occupation:' Home Rights' |
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12 | (1) |
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1.3.7 Interest Under a Resulting or Constructive Trust (Implied Trusts) |
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13 | (1) |
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1.3.8 Proprietary Estoppel |
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14 | (1) |
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14 | (1) |
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15 | (1) |
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15 | (4) |
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1.4 Proof of Title to Land |
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19 | (7) |
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1.4.1 Importance of Proof of Title |
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19 | (1) |
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1.4.2 Methods of Proving that a Vendor has Good Title |
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19 | (1) |
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20 | (1) |
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21 | (5) |
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26 | (13) |
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26 | (1) |
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27 | (1) |
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2.3 Commonhold: A New Tenure for the Twenty-First Century |
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27 | (2) |
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2.3.1 The Problem Commonhold is Designed to Solve |
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27 | (1) |
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2.3.2 Commonhold Tenure to the Rescue |
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28 | (1) |
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2.3.3 Common Parts in a Commonhold |
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29 | (1) |
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29 | (1) |
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30 | (3) |
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2.5.1 Fee Simple Estates before 1926 |
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30 | (1) |
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2.5.2 Fee Simple Estates after 1925 |
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31 | (1) |
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2.5.3 Modified Fee Simple Estates |
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31 | (2) |
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33 | (1) |
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33 | (1) |
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2.8 Estates in Possession, Reversion, and Remainder |
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34 | (2) |
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2.8.1 Estate in Possession |
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34 | (1) |
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2.8.2 Estate in Reversion |
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34 | (1) |
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2.8.3 Estate in Remainder |
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35 | (1) |
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2.9 Interests under Trusts |
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36 | (3) |
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3 Creation of Legal and Equitable Rights in Land |
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39 | (30) |
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3.1 Legal and Equitable Property Rights |
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39 | (1) |
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3.1.1 Legal Property Rights |
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39 | (1) |
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3.1.2 Equitable Property Rights |
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40 | (1) |
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3.1.3 Legal and Equitable Property Rights after 1925 |
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40 | (1) |
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3.2 Legal Estates and Interests and the 1925 Legislation |
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40 | (2) |
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3.2.1 The Number of Types of Legal Estates and Interests prior to 1925 |
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40 | (1) |
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3.2.2 The Effect of the 1925 Legislation |
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40 | (1) |
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3.2.3 Law of Property Act 1925, s1 |
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41 | (1) |
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3.3 Legal Estates Existing after 1925 |
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42 | (1) |
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3.3.1 Term of Years Absolute |
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42 | (1) |
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3.3.2 Fee Simple Absolute in Possession |
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42 | (1) |
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3.4 Legal Interests Existing after 1925 |
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43 | (2) |
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3.4.1 (a) Easements and Profits |
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44 | (1) |
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44 | (1) |
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3.4.3 (c) 'A Charge by Way of Legal Mortgage' |
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44 | (1) |
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3.4.4 (d) All Interests in Land which Arise by Operation of Statute |
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44 | (1) |
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3.4.5 (e) Rights of Entry |
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45 | (1) |
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3.5 Equitable Interests after 1925 |
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45 | (1) |
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3.5.1 The Status of Fees Tail, Fees Simple in Remainder, Determinable Fees, and Life Estates |
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46 | (1) |
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3.6 Creation and Transfer of Legal Property Rights |
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46 | (1) |
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3.6.1 Formalities for a Deed: the Traditional Rule |
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47 | (1) |
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3.6.2 Formalities for a Deed: the Modern Rule |
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47 | (1) |
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3.7 Creation of Equitable Interests in Land |
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47 | (1) |
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3.7.1 'Equity Follows the Law' as to Types of Property Right |
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48 | (1) |
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3.8 Creation of Equitable Interests in Land by Express Trust |
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48 | (1) |
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3.9 Creation of Equitable Interests by a Contract to Convey or Create a Legal Estate or Interest |
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49 | (10) |
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3.9.1 Contracts for the Sale of Estates or Interests in Land |
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49 | (1) |
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3.9.2 Formalities for Contracts to Sell Estates or Interests in Land |
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49 | (3) |
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3.9.3 Exchange of Contracts |
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52 | (1) |
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52 | (6) |
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3.9.5 A Contract to Create Rights in Land Itself Creates an Equitable Interest in the Land |
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58 | (1) |
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3.10 An Informal Grant of Rights in Land May be Treated as a Contract and so Creates an Equitable Interest in Land |
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59 | (3) |
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3.10.1 Limits on the Principle that a Contract or Informal Grant Creates an Equitable Interest |
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60 | (2) |
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3.11 Grant of an Estate or Interest by a Person Who Owns Only an Equitable Interest |
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62 | (1) |
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3.12 Grants of Interests Which Can Exist Only in Equity |
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63 | (6) |
| Part 2 Unregistered Land |
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4 Protection of Legal and Equitable Property Rights in Unregistered Land |
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69 | (34) |
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4.1 Legal and Equitable Property Rights: Case Study-High Chimneys |
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70 | (1) |
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4.2 Proof of Ownership-Title Deeds |
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70 | (1) |
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4.3 The Legal Property Rights of Olabode |
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71 | (1) |
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4.4 The Equitable Property Rights of Gianluca |
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72 | (1) |
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4.5 The Elements of the Doctrine of Notice |
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73 | (8) |
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73 | (1) |
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4.5.2 Purchaser for Value |
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73 | (1) |
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4.5.3 Purchaser of a Legal Estate or Legal Interest |
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74 | (1) |
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4.5.4 Without Notice of the Equitable Interest |
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75 | (6) |
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4.6 Position of Successors in Title to a Purchaser without Notice |
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81 | (1) |
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4.7 Registration of Land Charges |
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82 | (12) |
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4.7.1 The Operation of the Land Charges Register |
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83 | (1) |
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4.7.2 Searches of the Land Charges Register |
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84 | (1) |
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4.7.3 Equitable Interests Registrable as Land Charges |
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85 | (2) |
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4.7.4 Legal Interests Registrable as Land Charges |
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87 | (1) |
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4.7.5 Consequences of Failure to Register a Land Charge |
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88 | (3) |
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4.7.6 Other Registers Associated with the Land Charges Register |
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91 | (1) |
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4.7.7 Searches of the Land Charges Register-The Importance of the Official Search Certificate |
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92 | (2) |
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4.8 Overreachable Equitable Interests |
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94 | (1) |
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4.8.1 The Essence of Overreaching |
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94 | (1) |
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4.8.2 Overreaching on a Sale by Personal Representatives |
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95 | (1) |
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4.8.3 Overreaching on a Sale by a Mortgagee of Mortgaged Land |
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95 | (1) |
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4.9 Equitable Interests Still Subject to the Doctrine of Notice |
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95 | (8) |
| Part 3 Registered Land |
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5 Registration of Title-The Basic Principles |
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103 | (24) |
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5.1 Registration of Title |
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104 | (1) |
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104 | (1) |
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105 | (1) |
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5.1.3 Insurance Principle |
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105 | (1) |
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5.2 The Form of the Register |
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105 | (5) |
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109 | (1) |
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5.2.2 The Proprietorship Part |
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110 | (1) |
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110 | (1) |
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5.3 Categories of Rights in Registered Land |
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110 | (1) |
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5.3.1 The Terminology Used by the Land Registration Act 2002 |
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111 | (1) |
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5.4 First Registration of Title |
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111 | (2) |
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5.4.1 Compulsory First Registration |
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111 | (2) |
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5.4.2 Voluntary Registration |
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113 | (1) |
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5.5 Register of Estates Not Register of Plots |
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113 | (1) |
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5.6 Procedure Where a Sale or Lease Gives Rise to First Registration |
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114 | (3) |
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5.6.1 Applications for First Registration |
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115 | (1) |
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5.6.2 Which Third Party Interests Bind a First Registered Proprietor? |
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116 | (1) |
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117 | (2) |
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117 | (1) |
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118 | (1) |
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119 | (1) |
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5.9 Conclusiveness of the Register-and Does that Extend to Beneficial Ownership? |
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120 | (1) |
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5.10 Dispositions of Registered Titles |
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120 | (3) |
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5.10.1 Powers of Disposition |
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121 | (1) |
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5.10.2 Registrable Dispositions |
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121 | (2) |
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5.11 Procedure on Transfer of a Registered Title |
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123 | (4) |
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6 Interests Protected by Registration and Overriding Interests |
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127 | (40) |
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6.1 Interests in Land Protected by Registration |
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127 | (1) |
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6.2 Protection of Interests in Land |
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128 | (3) |
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128 | (2) |
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130 | (1) |
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6.3 Priorities of Interests in Registered Land |
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131 | (4) |
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6.3.1 Fraud and Bad Faith |
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132 | (3) |
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6.4 Searches of the Register |
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135 | (1) |
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6.5 Overriding Interests (or Unregistered Interests Which Override Registered Dispositions) |
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135 | (32) |
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136 | (1) |
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6.5.2 Easements and Profits |
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136 | (3) |
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139 | (1) |
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6.5.4 Property Rights of a Person in Actual Occupation |
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140 | (14) |
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6.5.5 The Doctrine of Notice is not Applicable to Registered Land |
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154 | (13) |
| Part 4 Acquisition Of Interests In Land (I) |
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167 | (40) |
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7.1 The Three Types of Trust Under the Old Law |
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168 | (1) |
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168 | (1) |
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7.1.2 The Strict Settlement |
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168 | (1) |
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169 | (1) |
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7.2 Criticism of the Old Law Governing Bare Trusts of Land |
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169 | (1) |
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7.3 Criticisms of Strict Settlements and the Settled Land Act 1925 |
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169 | (2) |
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7.3.1 An Anomalous Form of Trust |
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169 | (1) |
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7.3.2 Limited Powers of Disposition of Life Tenants |
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169 | (1) |
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7.3.3 Complex Documentation |
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170 | (1) |
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7.3.4 Accidental Strict Settlements |
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170 | (1) |
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7.4 Criticisms of the Trust for Sale |
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171 | (4) |
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7.4.1 The Artificial Nature of the Duty to Sell |
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171 | (1) |
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7.4.2 The Archaic Doctrine of 'Conversion' |
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172 | (1) |
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7.4.3 Doubts as to Whether Beneficiaries Have a Right to Occupy the Land |
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172 | (1) |
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7.4.4 Limited Powers of Trustees for Sale |
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173 | (1) |
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7.4.5 The Anomalous Concept of a Trust for Sale Subject to Consents |
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173 | (1) |
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7.4.6 'Old Law'-Everybody Used Trusts for Sale |
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174 | (1) |
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7.5 The Definition of a Trust of Land |
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175 | (5) |
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7.5.1 Existing Trusts for Sale |
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175 | (1) |
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7.5.2 Trusts for Sale Arising after 1996 |
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176 | (1) |
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7.5.3 Deliberately Created Trusts of Land after the Commencement of the 1996 Act |
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177 | (1) |
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7.5.4 Bare Trusts after 1996 |
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177 | (1) |
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7.5.5 Constructive Trusts Affecting Land |
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177 | (1) |
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7.5.6 Treatment of Transactions Which Would Have Been Strict Settlements |
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178 | (2) |
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7.6 The Need for Two Trustees for a Trust of Land |
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180 | (1) |
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7.7 Appointment, Retirement, and Removal of Trustees |
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181 | (3) |
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7.7.1 The Original Trustees |
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181 | (1) |
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7.7.2 Appointing Fresh Trustees to an Existing Trust |
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181 | (1) |
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7.7.3 When May New Appointments Be Made? |
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182 | (1) |
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7.7.4 Removal of Trustees |
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182 | (1) |
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7.7.5 Retirement of Trustees |
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183 | (1) |
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7.7.6 Situations Where a Trustee is Also a Beneficiary |
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184 | (1) |
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7.8 Method of Appointment of Trustees |
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184 | (1) |
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7.9 Unanimity of Trustees |
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185 | (1) |
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7.9.1 Exceptions to the Unanimity Rule |
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185 | (1) |
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7.10 The Powers of Disposition of Trustees of Land |
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186 | (1) |
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7.11 The Trustees' Duties on Exercising their Powers |
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187 | (6) |
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7.11.1 Specific Duties of Trustees of Land |
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188 | (1) |
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7.11.2 Placing Trustees of Land Under a Duty to Consult the Beneficiaries |
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188 | (2) |
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7.11.3 Personal Occupation of Trust Land by Beneficiaries |
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190 | (2) |
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7.11.4 Investment (or Other Use) of 'Capital Money' by Trustees of Land |
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192 | (1) |
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7.12 Exclusion and Restriction on Trustees of Land Powers of Disposition |
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193 | (5) |
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7.12.1 Depriving the Trustees of Powers of Disposition |
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193 | (1) |
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7.12.2 The Problem Posed by Restricting the Powers of the Trustees |
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194 | (1) |
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7.12.3 Dispositions Infringing s8(1)TOLATA 1996 |
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194 | (1) |
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7.12.4 Are There Ways of Escaping from a Clause Removing the Powers of the Trustees? |
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194 | (2) |
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196 | (2) |
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7.13 Delegation of Trustees' Powers to Beneficiaries |
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198 | (9) |
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7.13.1 The Old Law Background |
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198 | (1) |
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7.13.2 Delegation by Trustees Under s9 TOLATA 1996 |
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198 | (2) |
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7.13.3 The Revocation of a s9 Power of Attorney |
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200 | (1) |
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7.13.4 Liability if a Delegatee Beneficiary Proves to be Incompetent |
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200 | (2) |
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7.13.5 Total Delegation Almost like Settled Land |
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202 | (5) |
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8 Co-Ownership of Land-The Basic Principles |
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207 | (49) |
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8.1 The Two Forms of Co-Ownership Existing Today |
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208 | (1) |
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208 | (3) |
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8.2.1 Right of Survivorship (lus Accrescendi) |
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208 | (1) |
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209 | (2) |
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211 | (3) |
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8.3.1 The Concept of Undivided Shares |
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211 | (1) |
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8.3.2 Unequal Tenancies in Common |
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212 | (1) |
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8.3.3 The Problems with Tenancies in Common in the Early Twentieth Century |
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212 | (2) |
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8.4 The Reform of Co-Ownership in 1925-The Main Objective |
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214 | (3) |
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8.4.1 Drastic Treatment for Tenancies in Common |
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214 | (2) |
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8.4.2 Why Impose Trusts on Tenants in Common? |
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216 | (1) |
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8.4.3 What If There Are More Than Four Tenants in Common to Start With? |
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217 | (1) |
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8.5 Joint Tenancies in the Early Twentieth Century |
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217 | (3) |
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8.5.1 Imposition of Trusts (for Sale) on Beneficial Joint Tenants |
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218 | (1) |
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8.5.2 Why Impose a Trust (for Sale) on Joint Tenants? |
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218 | (2) |
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8.6 The Current Conveyancing Practice to Create an Express Trust |
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220 | (3) |
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8.6.1 Declaration of Trusts Now Strongly Encouraged by Land Registry Rules |
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222 | (1) |
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8.7 No Express Declaration of a Trust-Joint Tenants or Tenants in Common? |
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223 | (2) |
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8.8 Resulting and Constructive Trusts: Introduction |
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225 | (7) |
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225 | (2) |
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8.8.2 Constructive Trusts |
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227 | (5) |
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8.9 Joint Legal Owners of the Property |
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232 | (7) |
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8.9.1 Quantifying the Beneficial Interest Under a Constructive Trust |
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233 | (2) |
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8.9.2 Imputing or Inferring Intention at the Quantification Stage |
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235 | (4) |
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8.10 Severance of Joint Tenancies: Introduction |
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239 | (1) |
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8.11 Severance of a Legal Joint Tenancy is Impossible |
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239 | (1) |
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8.12 Methods of Severance |
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240 | (16) |
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8.12.1 Severance by Written Notice |
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241 | (6) |
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8.12.2 'An Act of Any One of the Persons Interested Operating Upon His Own Share' |
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247 | (1) |
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248 | (4) |
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8.12.4 Course of Dealings |
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252 | (1) |
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8.12.5 Matters Which Are Not a Severance |
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252 | (1) |
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8.12.6 'Severance by Will' |
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252 | (4) |
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9 Co-Ownership-The Resolution of Disputes |
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256 | (39) |
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9.1 The Effect of Imposing a Trust Upon Co-Owners |
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256 | (1) |
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9.2 Tenancy in Common Arising Because There is an Implied Trust |
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257 | (7) |
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9.2.1 Dispositions by a Single Trustee |
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257 | (2) |
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9.2.2 What if Alex did Appoint a Second Trustee? |
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259 | (4) |
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9.2.3 Other Trusts of Land Where There is Only a Single Trustee |
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263 | (1) |
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263 | (1) |
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9.3 Sections 13 to 15 TOLATA 1996-Disputes Between Owners |
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264 | (18) |
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9.3.1 The Basic Pattern of ss13 to 15 TOLATA 1996 |
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265 | (1) |
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9.3.2 Disputes Regarding Occupation of Trust Land-s13 |
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265 | (2) |
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9.3.3 Courts Settling Disputes Regarding Trusts of Land-s14 |
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267 | (2) |
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9.3.4 Factors to be Considered in Settling Disputes-s15 |
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269 | (1) |
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9.3.5 Settling Disputes as to Whether the Trust Property Should be Sold |
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270 | (12) |
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9.4 Bankruptcy of a Co-Owner |
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282 | (3) |
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9.4.1 Exceptional Circumstances Justifying Refusal of an Order of Sale |
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284 | (1) |
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9.5 The Modern Position of Co-Owners on a Marriage Break-Up |
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285 | (2) |
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9.6 Rights of Co-Owners in Equity-Are They Interests in Land? |
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287 | (1) |
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9.7 Law of Property (Joint Tenants) Act 1964 |
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288 | (1) |
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9.8 Co-Ownership of Registered Land |
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288 | (7) |
| Part 5 Acquisition Of Interests In Land (II) |
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10 Licences and Proprietary Estoppel |
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295 | (46) |
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295 | (1) |
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296 | (1) |
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10.3 Licences Coupled with an Interest |
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296 | (1) |
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10.4 Contractual Licences |
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297 | (9) |
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10.4.1 Revocation of a Licence by the Licensor |
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299 | (2) |
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10.4.2 The Effect of Licences between the Licensee and a Third Party |
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301 | (5) |
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306 | (1) |
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10.6 Proprietary Estoppel |
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306 | (20) |
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306 | (1) |
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10.6.2 Common Expectation |
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307 | (1) |
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307 | (1) |
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10.6.4 A Less Restrictive Approach Towards Common Expectation Cases |
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308 | (2) |
|
10.6.5 Modern Approach Towards Proprietary Estoppel |
|
|
310 | (16) |
|
10.7 Satisfying the Equity |
|
|
326 | (6) |
|
10.7.1 A Wide Interpretation of Satisfying the Equity |
|
|
328 | (4) |
|
10.8 Status of 'An Equity' Before it Has Been Satisfied |
|
|
332 | (9) |
| Part 6 Leases |
|
|
11 Leases-The Basic Requirements |
|
|
341 | (34) |
|
11.1 The Essential Requirements for a Lease |
|
|
342 | (1) |
|
|
|
342 | (8) |
|
|
|
342 | (3) |
|
11.2.2 Periodic Tenancies |
|
|
345 | (1) |
|
11.2.3 Special Problems Connected with the Duration of Leases |
|
|
346 | (4) |
|
11.3 Some Concepts Related to the Law of Leases |
|
|
350 | (1) |
|
11.3.1 Tenancy at Sufferance |
|
|
350 | (1) |
|
|
|
350 | (1) |
|
|
|
350 | (1) |
|
|
|
351 | (1) |
|
|
|
351 | (1) |
|
11.3.6 Assured Shorthold Tenancies |
|
|
351 | (1) |
|
11.4 The Distinction Between Leases and Licences |
|
|
351 | (18) |
|
11.4.1 Exclusive Possession as the Foundation of the Lease/Licence Distinction |
|
|
352 | (5) |
|
11.4.2 The Meaning of Exclusive Possession |
|
|
357 | (3) |
|
11.4.3 Retention of Keys by the Grantor |
|
|
360 | (1) |
|
11.4.4 Possessory Licences after Street v Mountford |
|
|
361 | (1) |
|
11.4.5 Acts of Generosity, Charity, or Friendship Where There is No Intent to Create Legal Relations |
|
|
361 | (1) |
|
11.4.6 Service Occupancies |
|
|
362 | (1) |
|
11.4.7 Occupancy by Virtue of an Office |
|
|
362 | (1) |
|
11.4.8 Occupancy Prior to the Completion of a Contract for Sale |
|
|
363 | (1) |
|
11.4.9 Flat-Sharing Agreements |
|
|
363 | (4) |
|
11.4.10 'Pretence'Clauses Designed to Negate Exclusive Possession |
|
|
367 | (2) |
|
11.5 Formalities for Leases |
|
|
369 | (6) |
|
11.5.1 Legal Leases by Express Grant |
|
|
369 | (1) |
|
11.5.2 Legal Leases by Operation of Law |
|
|
370 | (1) |
|
|
|
370 | (1) |
|
11.5.4 Equitable Lease and Legal Periodic Tenancy Existing Concurrently |
|
|
371 | (4) |
|
|
|
375 | (42) |
|
12.1 Implied Landlord's Covenants |
|
|
375 | (16) |
|
|
|
375 | (1) |
|
12.1.2 Non-Derogation from Grant |
|
|
376 | (1) |
|
12.1.3 Liability to Repair-General |
|
|
377 | (2) |
|
12.1.4 Implied Covenants-The Landlord and Tenant Act 1985 |
|
|
379 | (1) |
|
12.1.5 Sections 8 to 10 Landlord and Tenant Act 1985 |
|
|
379 | (1) |
|
12.1.6 Sections 11 to 14 Landlord and Tenant Act 1985 |
|
|
380 | (4) |
|
12.1.7 The Crucial Principle in O'Brien v Robinson |
|
|
384 | (2) |
|
12.1.8 Landlord's Covenant to Repair Common Parts |
|
|
386 | (2) |
|
12.1.9 What does 'Repair' Mean? |
|
|
388 | (1) |
|
12.1.10 The Repair/Reconstruction Distinction |
|
|
389 | (1) |
|
12.1.11 Uncomfortable Living Conditions |
|
|
390 | (1) |
|
12.2 Remedies for Breach of the Landlord's Covenants to Repair |
|
|
391 | (5) |
|
12.2.1 No Rent-Strikes, But... |
|
|
392 | (1) |
|
12.2.2 Specific Performance for Breach of a Repairing Obligation |
|
|
393 | (1) |
|
12.2.3 Appointing a Receiver |
|
|
394 | (1) |
|
12.2.4 Appointing a Receiver-Manager |
|
|
395 | (1) |
|
12.2.5 Local Authorities Taking Action against Private Landlords |
|
|
395 | (1) |
|
12.2.6 Measure of Damages Against Landlords |
|
|
395 | (1) |
|
12.3 Tenant's Covenants-Express and Implied |
|
|
396 | (5) |
|
12.3.1 Rent-Form and Payment of Rent |
|
|
397 | (1) |
|
|
|
397 | (4) |
|
12.4 Covenants Against Assigning, Sub-Letting, and Parting with Possession |
|
|
401 | (10) |
|
12.4.1 Absolute Covenants |
|
|
401 | (1) |
|
12.4.2 Qualified Covenants |
|
|
402 | (6) |
|
12.4.3 Seeking the Landlord's Consent to a Proposed Transaction |
|
|
408 | (2) |
|
12.4.4 Section 19(1A) Landlord and Tenant Act 1927 |
|
|
410 | (1) |
|
12.5 Remedies Against a Tenant in Breach of Repairing Obligations |
|
|
411 | (6) |
|
|
|
411 | (1) |
|
12.5.2 Specific Performance-Enforcing the Tenant's Repairing Obligation |
|
|
412 | (5) |
|
13 The Running of Covenants in a Lease |
|
|
417 | (19) |
|
13.1 Case Study-Kirby House |
|
|
417 | (1) |
|
13.2 Pre-1996 Leases-Liability of Original Parties after Assignment |
|
|
418 | (7) |
|
13.2.1 The Basic Principles of the Running of Covenants in Pre-1996 Leases |
|
|
419 | (1) |
|
13.2.2 Which Covenants Touch and Concern the Land? |
|
|
420 | (1) |
|
13.2.3 Solution to Kirby House Case Study |
|
|
421 | (1) |
|
13.2.4 Assignment of the Reversion to a Pre-1996 Lease |
|
|
422 | (1) |
|
13.2.5 Assignment of a Pre-1996Lease |
|
|
422 | (1) |
|
13.2.6 Indemnities between Assignees of a Lease |
|
|
423 | (1) |
|
13.2.7 Position of Covenants which Do Not Touch and Concern |
|
|
424 | (1) |
|
13.2.8 Position of Options to Purchase the Reversion |
|
|
424 | (1) |
|
13.2.9 Position of Options to Renew the Lease |
|
|
425 | (1) |
|
13.3 The Landlord and Tenant (Covenants) Act 1995 |
|
|
425 | (6) |
|
13.3.1 All Covenants in a Lease Now 'Touch and Concern the Land' |
|
|
426 | (2) |
|
13.3.2 Original Tenant's Liability Ceases on Assignment |
|
|
428 | (1) |
|
13.3.3 Authorized Guarantee Agreements |
|
|
428 | (2) |
|
13.3.4 Cessation of Original Landlord's Liability |
|
|
430 | (1) |
|
13.3.5 Notice to Tenant or Guarantor of Arrears |
|
|
430 | (1) |
|
13.4 Position of Equitable Leases |
|
|
431 | (1) |
|
13.4.1 Pre-1996 Equitable Leases |
|
|
431 | (1) |
|
13.4.2 Post-1995 Equitable Leases |
|
|
431 | (1) |
|
13.5 Position of Sub-Tenants and Head Landlords |
|
|
432 | (4) |
|
13.5.1 Forfeiture Clauses |
|
|
432 | (1) |
|
13.5.2 Restrictive Covenants in the Head Lease |
|
|
432 | (4) |
|
|
|
436 | (29) |
|
14.1 Ways in Which Leases May Terminate |
|
|
436 | (3) |
|
|
|
436 | (1) |
|
|
|
436 | (1) |
|
|
|
437 | (1) |
|
|
|
437 | (1) |
|
|
|
437 | (2) |
|
14.1.6 Repudiatory Breach by the Landlord Accepted by the Tenant |
|
|
439 | (1) |
|
|
|
439 | (1) |
|
14.2 Forfeiture of Leases |
|
|
439 | (2) |
|
14.2.1 The Need fora Forfeiture Clause |
|
|
439 | (1) |
|
14.2.2 Modes of Forfeiture |
|
|
440 | (1) |
|
14.2.3 Forfeiture of a Lease of a Dwelling House |
|
|
441 | (1) |
|
14.3 Waiver of Forfeiture |
|
|
441 | (3) |
|
14.4 Relief from Forfeiture |
|
|
444 | (13) |
|
14.4.1 Relief from Forfeiture for Non-Payment of Rent |
|
|
444 | (1) |
|
14.4.2 Forfeiture for Breach of Covenant Other than Rent |
|
|
445 | (2) |
|
14.4.3 The Four Stages Required by s146 for Forfeiture by Court Proceedings |
|
|
447 | (1) |
|
14.4.4 The s146 Notice Must Be Drafted Correctly |
|
|
447 | (2) |
|
14.4.5 Remediable or Irremediable Breaches? |
|
|
449 | (6) |
|
14.4.6 Relief to Sub-Tenants |
|
|
455 | (2) |
|
14.5 Leasehold Property (Repairs) Act 1938 |
|
|
457 | (8) |
| Part 7 Informal Acquisition Of Legal Estates |
|
|
15 Adverse Possession and the Limitation Acts |
|
|
465 | (44) |
|
15.1 Rationale of Adverse Possession |
|
|
466 | (2) |
|
15.1.1 Adverse Possession Human Rights Compliant |
|
|
467 | (1) |
|
15.2 Possession Gives a Right to Sue Trespassers |
|
|
468 | (1) |
|
15.3 The Limitation Act 1980 |
|
|
469 | (1) |
|
15.4 Commencement of Adverse Possession |
|
|
470 | (3) |
|
15.4.1 Dispossession and Discontinuance |
|
|
470 | (1) |
|
15.4.2 The 'Apparently Abandoned Plot' Problem |
|
|
471 | (2) |
|
|
|
473 | (6) |
|
15.5.1 Factual Possession |
|
|
473 | (4) |
|
15.5.2 Intention to Possess (Animus Possidendi) |
|
|
477 | (2) |
|
15.6 Offence of Squatting in a Residential Building |
|
|
479 | (2) |
|
15.7 Preventing the Acquisition of Title by Adverse Possession |
|
|
481 | (2) |
|
15.7.1 Time Starts Running Afresh by Acknowledgement of Title |
|
|
481 | (1) |
|
15.7.2 Acknowledgement of Title Made by Person in whose Favour Time has Already Run is of No Effect |
|
|
482 | (1) |
|
15.8 The Effect of Adverse Possession |
|
|
483 | (26) |
|
|
|
483 | (4) |
|
|
|
487 | (22) |
| Part 8 Protection For The Purchaser Of Registered Land |
|
|
16 Rectification of the Register of Title |
|
|
509 | (22) |
|
16.1 Rectification of the Register (Other Than Adverse Possession) |
|
|
509 | (2) |
|
16.2 The Situations Where Rectification of the Register May Be Appropriate |
|
|
511 | (11) |
|
16.2.1 'Double Conveyancing' |
|
|
511 | (1) |
|
16.2.2 Other (Possibly Negligent) Mistakes |
|
|
512 | (1) |
|
16.2.3 Registration Obtained through Fraud and/or Forgery |
|
|
513 | (1) |
|
16.2.4 Rectification Against a Registered Proprietor in Possession |
|
|
514 | (8) |
|
16.3 The Effect of Rectification on Priorities |
|
|
522 | (1) |
|
|
|
523 | (8) |
|
16.4.1 Indemnity fora Registered Proprietor Where Rectification is Granted |
|
|
523 | (2) |
|
16.4.2 Indemnity fora Person Who is Refused Rectification |
|
|
525 | (6) |
| Part 9 Easements |
|
|
17 The Essential Characteristics of Easements |
|
|
531 | (22) |
|
17.1 Preliminary Considerations |
|
|
531 | (1) |
|
17.2 Characteristics of an Easement: Re Ellenborough Park |
|
|
532 | (1) |
|
17.3 There Must Be a Dominant and a Servient Tenement |
|
|
533 | (2) |
|
17.4 The Easement Must Accommodate the Dominant Tenement |
|
|
535 | (2) |
|
17.5 The Easement Must Be Owned or Occupied by Different People |
|
|
537 | (1) |
|
17.6 Case Study-Apple Tree Farm |
|
|
537 | (1) |
|
17.7 'An Easement Must Be Capable of Forming the Subject Matter of a Grant' |
|
|
538 | (12) |
|
17.7.1 There Must be a Capable Grantor and Capable Grantee |
|
|
538 | (1) |
|
17.7.2 An Easement Must be Capable of Reasonably Exact Definition |
|
|
539 | (1) |
|
17.7.3 The Easement Ought to be Within the General Categories of Established Easements |
|
|
539 | (3) |
|
17.7.4 An Easement Must Not Involve Any Expenditure by the Servient Owner |
|
|
542 | (2) |
|
17.7.5 An Easement Must Not be so Extensive as to Give the Dominant Owner Sole or Joint Possession of the Servient Land |
|
|
544 | (6) |
|
17.8 Access to Neighbouring Land Act 1992 |
|
|
550 | (3) |
|
18 Creation of Express and Implied Grant of Easements |
|
|
553 | (24) |
|
18.1 Creation of Easements (and Profits)-Legal or Equitable? |
|
|
553 | (1) |
|
18.2 Express Grant of Easements (and Profits) |
|
|
554 | (1) |
|
18.3 Express Reservation of Easements (and Profits) |
|
|
555 | (2) |
|
18.4 Implied Grant of Easements (and Profits) |
|
|
557 | (12) |
|
|
|
557 | (2) |
|
18.4.2 Intended Easements |
|
|
559 | (2) |
|
18.4.3 The Rule in Wheeldon v Burrows |
|
|
561 | (3) |
|
18.4.4 Section 62 Law of Property Act 1925 |
|
|
564 | (5) |
|
18.5 Implied Reservation of Easements |
|
|
569 | (1) |
|
|
|
569 | (1) |
|
18.5.2 Intended Easements |
|
|
570 | (1) |
|
18.6 Exclusion of the Rules Providing for Implied Grant and Reservation |
|
|
570 | (1) |
|
18.7 Compulsory Purchase and the Rules for Implied Grant |
|
|
571 | (1) |
|
18.8 Simultaneous Sales or Bequests |
|
|
571 | (1) |
|
18.9 Express or Implied Easements?-Legal or Equitable?-Overriding or Require Registration? |
|
|
571 | (6) |
|
18.9.1 Unregistered Servient Land |
|
|
571 | (1) |
|
18.9.2 Registered Servient Land |
|
|
571 | (6) |
|
19 Prescription for Easements (and Profits) |
|
|
577 | (32) |
|
19.1 Rules Common to All Three Forms of Prescription |
|
|
578 | (8) |
|
19.1.1 User, to be Prescriptive, Must Be 'As of Right' |
|
|
578 | (4) |
|
19.1.2 Presumed Acquiescence |
|
|
582 | (1) |
|
19.1.3 User Which is a Criminal Offence |
|
|
583 | (1) |
|
19.1.4 User Must Be Continuous |
|
|
583 | (1) |
|
19.1.5 User Must Be By or on Behalf of a Fee Simple Against a Fee Simple |
|
|
584 | (1) |
|
19.1.6 User Must Be Against a Servient Owner Capable of Granting an Easement |
|
|
585 | (1) |
|
19.2 Prescription at Common Law |
|
|
586 | (1) |
|
19.3 Prescription by Lost Modern Grant |
|
|
586 | (3) |
|
19.4 Prescription Under the Prescription Act 1832 |
|
|
589 | (10) |
|
19.4.1 Shorter and Longer Periods Under the Act |
|
|
590 | (1) |
|
19.4.2 The 'Next Before Action' and 'Without Interruption' Rules |
|
|
591 | (2) |
|
19.4.3 Differences between Longer and Shorter Periods Under the Prescription Act 1832 |
|
|
593 | (3) |
|
19.4.4 Prescription for Easements of Light |
|
|
596 | (2) |
|
19.4.5 Reform of Easements of Light |
|
|
598 | (1) |
|
19.5 Prescriptive Easements and Profits as Legal Interests |
|
|
599 | (1) |
|
19.6 Extinguishment of Easements |
|
|
599 | (10) |
|
|
|
600 | (1) |
|
|
|
600 | (2) |
|
19.6.3 Extinguishment by Operation of Schedule 3 Paragraph 3 Land Registration Act 2002 |
|
|
602 | (7) |
| Part 10 Freehold Covenants: Restrictive And Positive Covenants |
|
|
|
|
609 | (47) |
|
20.1 Case Study-Marchland Close |
|
|
609 | (2) |
|
20.2 Restrictive and Positive Covenants Distinguished |
|
|
611 | (1) |
|
20.3 Does the Burden or Benefit Run with the Land? |
|
|
611 | (1) |
|
20.4 Common Law: Does the Burden of a Covenant Run with the Land? |
|
|
612 | (1) |
|
20.5 Equity: Does the Burden of a Restrictive Covenant Run with the Land? |
|
|
612 | (6) |
|
20.5.1 The Covenant Must Be Negative in Substance |
|
|
614 | (1) |
|
20.5.2 The Covenant Must, at the Date of the Covenant, be Made to Benefit the Dominant Land Retained by the Covenantee |
|
|
614 | (1) |
|
20.5.3 The Covenant Must Touch and Concern the Dominant Land |
|
|
615 | (1) |
|
20.5.4 The Covenant Must Be Made with an Intent to Burden the Servient Land |
|
|
616 | (2) |
|
20.6 Does a Covenant Bind the Original Parties? |
|
|
618 | (2) |
|
20.6.1 The Benefit of Restrictive Covenants-Identifying the Original Covenantees |
|
|
618 | (2) |
|
20.6.2 Relaxing the Rules on Privity of Contract |
|
|
620 | (1) |
|
20.7 Does the Benefit of a Covenant Run with Land? |
|
|
620 | (1) |
|
20.8 Common Law: Does the Benefit of a Covenant Run with Land? |
|
|
621 | (3) |
|
20.8.1 Covenant must 'Touch and Concern' the Land |
|
|
622 | (1) |
|
20.8.2 At the Date of the Covenant, the Original Covenantee Held a Legal Estate in Land |
|
|
622 | (1) |
|
20.8.3 The Successor in Title Must Derive their Title From or Under the Original Covenantee |
|
|
622 | (1) |
|
20.8.4 At the Date of the Covenant, the Benefit Must Have Been Intended to Run with the Land |
|
|
622 | (2) |
|
20.9 Equity: Does the Benefit of a Covenant Run with the Land? |
|
|
624 | (17) |
|
|
|
624 | (11) |
|
20.9.2 Assignment of the Benefit of Restrictive Covenants |
|
|
635 | (2) |
|
20.9.3 Building Schemes or Schemes of Development |
|
|
637 | (4) |
|
20.10 Possible Ways of Making Positive Covenants Run |
|
|
641 | (3) |
|
20.10.1 Enlargement of Long Lease |
|
|
641 | (1) |
|
|
|
642 | (1) |
|
20.10.3 Indemnity Covenants |
|
|
642 | (1) |
|
20.10.4 Mutual Benefit and Burden |
|
|
642 | (1) |
|
20.10.5 Claim Under Mutual Benefit and Burden Not a Property Right |
|
|
643 | (1) |
|
20.10.6 Estate Rent Charges |
|
|
644 | (1) |
|
20.11 Restrictive Covenants as Equitable Interests |
|
|
644 | (1) |
|
20.12 Remedies to Enforce a Breach of a Covenant |
|
|
645 | (4) |
|
20.13 The Chaotic State of the Law on the Running of Benefits of Covenants |
|
|
649 | (7) |
|
20.13.1 'Land Obligations' |
|
|
650 | (6) |
|
21 Escaping from Restrictive Covenants |
|
|
656 | (17) |
|
|
|
656 | (1) |
|
21.2 'Doing a Parkside Homes' |
|
|
657 | (1) |
|
21.3 Attempt to Buy Out the Dominant Owners |
|
|
657 | (1) |
|
21.4 Is the Freehold Subject to a Restrictive Covenant? What is the Scope of the Restrictive Covenant? Who Can Enforce It? |
|
|
658 | (1) |
|
21.5 Modification or Discharge of a Covenant Under s84(1) |
|
|
659 | (6) |
|
21.5.1 The Grounds for Discharge or Modification of Restrictive Covenants |
|
|
660 | (5) |
|
21.6 Balancing Interests of the Parties-'Thin End of the Wedge' |
|
|
665 | (8) |
|
21.6.1 Case Study-The Firs |
|
|
665 | (1) |
|
21.6.2 Compensation for Dominant Owners |
|
|
666 | (7) |
| Part 11 Mortgages |
|
|
22 The Creation of Mortgages |
|
|
673 | (17) |
|
|
|
673 | (1) |
|
22.2 Form of a Legal Mortgage of a Fee Simple before 1926 |
|
|
674 | (2) |
|
22.2.1 Equitable Right to Redeem |
|
|
675 | (1) |
|
22.2.2 The Equity of Redemption |
|
|
675 | (1) |
|
22.2.3 Mortgagor Retaining Possession |
|
|
676 | (1) |
|
22.3 Legal Mortgages after 1925-Unregistered Land |
|
|
676 | (3) |
|
22.3.1 Mortgage by Long Lease ('Mortgage by Demise') |
|
|
677 | (1) |
|
22.3.2 Charge by Way of Legal Mortgage |
|
|
677 | (2) |
|
22.4 Legal Mortgages of Registered Land |
|
|
679 | (1) |
|
22.5 Modern Types of Mortgages |
|
|
680 | (1) |
|
|
|
681 | (1) |
|
|
|
681 | (1) |
|
|
|
681 | (1) |
|
22.7 Equitable Mortgages of Legal Estates |
|
|
682 | (8) |
|
22.7.1 Equitable Mortgage by Deposit of Deeds-Unregistered Land |
|
|
682 | (1) |
|
22.7.2 Equitable Mortgage of a Registered Title by Deposit of the Land Certificate |
|
|
683 | (3) |
|
22.7.3 Comparison of Legal and Equitable Mortgages pre- 1989 |
|
|
686 | (1) |
|
22.7.4 Comparison of Legal and Equitable Mortgages after 1989 |
|
|
687 | (1) |
|
22.7.5 Mortgages of Equitable Interests |
|
|
687 | (1) |
|
22.7.6 Protecting an Equitable Mortgage |
|
|
687 | (3) |
|
23 The Remedies of Mortgagees |
|
|
690 | (35) |
|
23.1 Remedies of Legal Mortgagees-An Overview |
|
|
690 | (1) |
|
23.2 Action on a Mortgagor's Covenant to Repay |
|
|
691 | (1) |
|
23.3 Mortgagees Taking Possession |
|
|
691 | (15) |
|
23.3.1 Court Proceedings for Possession Brought by a Mortgagee |
|
|
692 | (1) |
|
23.3.2 Mortgagee Taking Possession of a Dwelling House |
|
|
693 | (13) |
|
23.3.3 Duty of Mortgagee in Possession to Account Strictly |
|
|
706 | (1) |
|
23.4 The Mortgagee's Statutory Power of Sale |
|
|
706 | (11) |
|
23.4.1 When Does the Statutory Power Arise? |
|
|
707 | (1) |
|
23.4.2 When Does the Statutory Power become Exercisable? |
|
|
707 | (1) |
|
23.4.3 Protection for Purchasers in Good Faith from Mortgagees |
|
|
708 | (1) |
|
23.4.4 Mortgagee's Duties on Selling the Property |
|
|
709 | (6) |
|
23.4.5 Can a Mortgagee Sell to Their 'Friends'? |
|
|
715 | (1) |
|
23.4.6 Position of Purchasers and the Question of Price |
|
|
715 | (1) |
|
23.4.7 The Effect of Sale |
|
|
716 | (1) |
|
23.4.8 Destination of Proceeds of Sale |
|
|
716 | (1) |
|
23.5 Power to Appoint a Receiver |
|
|
717 | (2) |
|
23.5.1 Receiver Deemed to be the Mortgagor's Agent |
|
|
718 | (1) |
|
|
|
719 | (2) |
|
23.6.1 The Foreclosure Process |
|
|
719 | (1) |
|
23.6.2 Judicial Sale in Foreclosure Proceedings |
|
|
720 | (1) |
|
23.6.3 Foreclosure and Dwelling Houses |
|
|
720 | (1) |
|
23.7 Remedies of an Equitable Mortgagee or Chargee |
|
|
721 | (4) |
|
|
|
721 | (1) |
|
23.7.2 Sale and Appointing a Receiver |
|
|
721 | (1) |
|
|
|
721 | (4) |
|
24 The Operation of Mortgages |
|
|
725 | (30) |
|
24.1 Rights of the Mortgagor |
|
|
725 | (11) |
|
24.1.1 The Rules of Equity Protecting the Equitable Right to Redeem |
|
|
726 | (1) |
|
24.1.2 No Irredeemable Mortgages |
|
|
727 | (1) |
|
24.1.3 Postponement of Redemption |
|
|
728 | (2) |
|
24.1.4 Collateral Advantages |
|
|
730 | (5) |
|
24.1.5 Restraint on Trade |
|
|
735 | (1) |
|
24.1.6 Statutory Regulation of Mortgages |
|
|
735 | (1) |
|
24.2 Leasing of the Mortgaged Property |
|
|
736 | (2) |
|
24.2.1 Leases Prior to the Mortgage |
|
|
736 | (1) |
|
24.2.2 Leases Subsequent to the Mortgage |
|
|
736 | (1) |
|
24.2.3 Unauthorized Leases |
|
|
737 | (1) |
|
24.3 Vitiating Factor-Undue Influence |
|
|
738 | (10) |
|
24.3.1 What is Undue Influence According to O'Brien? |
|
|
739 | (3) |
|
24.3.2 Undue Influence-Reconsidered |
|
|
742 | (6) |
|
24.4 Redemption of Mortgages |
|
|
748 | (2) |
|
24.4.1 When May Redemption Take Place? |
|
|
748 | (1) |
|
|
|
749 | (1) |
|
24.4.3 The Effect of Redemption |
|
|
749 | (1) |
|
24.4.4 Machinery of Redemption-Unregistered Land |
|
|
749 | (1) |
|
24.4.5 Machinery of Redemption-Registered Land |
|
|
749 | (1) |
|
24.4.6 Consolidation of Mortgages |
|
|
750 | (1) |
|
24.5 Fire Insurance of the Mortgaged Property |
|
|
750 | (5) |
| Index |
|
755 | |
