22. The Creation of Mortgages

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses mortgage creation. It covers the definition of a mortgage; form of a legal mortgage of a fee simple before 1926; equitable right to redeem; equity of redemption; mortgagor retaining possession; legal mortgages after 1925 where land is unregistered; legal mortgages of registered land; charge by way of legal mortgage; types of mortgages; mortgages of leases; equitable mortgage by deposit of deeds (unregistered land); equitable mortgage of registered title (deposit of land certificate); and legal and equitable mortgages after 1989.

21. Escaping from Restrictive Covenants

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the various options available to developers whose plans are obstructed by restrictive covenants. It covers ignoring restrictive covenants; attempting to buy out the dominant owners; identifying who can enforce a restrictive covenant; obtaining a definitive list of dominant owners; modification or discharge of a covenant under s84(1) of the Law of Property Act 1925; grounds for discharge or modification of restrictive covenants (obsolete, obstructs some reasonable user of the land, practical benefit and public interest); and balancing interests of the parties.

18. Creation of Express and Implied Grant of Easements

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the rules on the creation of an easement. Topics covered include express grant of easements (and profits); express reservation of easements (and profits); implied grant of easements (and profits), which includes ways of necessity, intended easements, the rule in Wheeldon v Burrows and s62 of the Law of Property Act 1925; implied reservation of easements covering necessity and intended easements; exclusion of the rules providing for implied grant and reservation; compulsory purchase and the rules for implied grant; and simultaneous sales or bequests.

8. Co-Ownership of Land— the Basic Principles

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the basic principles of land co-ownership. It covers the two forms of co-ownership: joint tenancy and tenancy in common; the reform of co-ownership in 1925; joint tenancies in the early twentieth century; the current conveyancing practice to create an express trust; rules when there is no express declaration of a trust; resulting and constructive trusts; quantifying the beneficial interest under a constructive trust; severance of joint tenancies; and methods of severance.

7. Trusts of Land

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the three types of trust under the old law which operated prior to the commencement of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). It also presents criticism of the old law governing bare trusts of land; criticisms of strict settlements and the Settled Land Act 1925; criticisms of the trust for sale; the definition of a trust of land; the need for two trustees for a trust of land; appointment, retirement, and removal of trustees; method of appointment of trustees; unanimity of trustees; the powers of disposition of trustees of land; the trustees' duties on exercising their powers; exclusion and restriction on trustees of land powers of disposition; and delegation of trustees' powers to beneficiaries.

19. Prescription for Easements (and Profits)

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses rules common to all three forms of prescription; user ‘as of right’ (without force, without secrecy and without permission), presumed acquiescence, user must be continuous, user must be by or on behalf of a fee simple against a fee simple, and user must be against a servient owner capable of granting an easement; prescription at common law; prescription by lost modern grant; prescription under the Prescription Act 1832; prescriptive easements and profits as legal interests; and extinguishment of easements.

11. Leases—The Basic Requirements

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the basic principles of the law of leases. It covers the essential requirements for a lease; duration of leases and certainty of term; some concepts related to the law of leases; the distinction between leases and licences; how exclusive possession is defined; shared and multiple occupation cases; ‘sham’ tenancies and pretence clauses designed to negate exclusive possession; and formalities for the creation of leases.

24. The Operation of Mortgages

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the rights of the mortgagor (rules protecting the equitable right to redeem, ‘clogs’ and ‘fetters’, postponement of redemption, collateral advantages, restraint on trade); statutory regulation of mortgages; leasing of the mortgaged property; undue influence, where a third party pressurizes the mortgagor into cooperating in the granting of a mortgage so that the third party can get a loan from a lending organization; redemption of mortgages; and fire insurance of the mortgaged property.

23. The Remedies of Mortgagees

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the remedies of legal mortgagees. These include action on a mortgagor’s covenant to repay; mortgagees taking possession; court proceedings for possession brought by mortgagee; mortgagee taking possession of a dwelling house; sale of the property where there is negative equity; court’s discretion to adjourn possession proceedings; the mortgagee’s statutory power of sale (when the power of sale arises, when the statutory power becomes exercisable, mortgagee’s duties on selling the property, the effect of sale); power to appoint a receiver; foreclosure; and remedies of an equitable mortgagee or chargee.

20. Freehold Covenants

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the difference between restrictive and positive covenants; the rules which govern the running of the burden of covenants; the rules regulating who initially has the right to enforce a covenant; the significance of s56 of the Law of Property Act 1925, and the impact of the Contracts (Rights of Third Parties) Act 1999; the rules regarding assignment of restrictive covenants; the concept ‘building scheme’; and whether a positive or restrictive covenant will pass to successors in title.