Past Papers and Material, High school final essays of Law

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PROPERTY LAW TOPICAL ESSAY QUESTIONS

BY

UMAR SAEED

@UMARSAEEDAHMAD

REGISTERED / UNREGISTERED

1. “The Land Registration Act 2002 has effectively abolished the law of adverse possession, in the sense that it will be extremely rare in the future for a claim based on adverse possession to be successful.” Discuss. 2008A
2. “The Land Registration Act 2002 marks a significant development. In particular it strikes an appropriate balance between the needs of the purchaser and those who are entitled to other interests in the land being purchased.” How far do you agree with this assessment of the provisions in the Land Registration Act 2002 other than those relating to adverse possession? 2010
3. “The Land Registration Act 2002 provides that virtually all property interests affecting title to land should be registered and, therefore, will be found on the land register. The law should go even further so as to provide that all interests relating to land must be registered.” Discuss. (Do not consider adverse possession in your answer) 2012
4. “The Land Registration Act 2002 makes it much more difficult for an owner of land to lose title to a squatter. Most commentators assume this to be a good thing but only time will tell whether this actually represents an improvement on the previous system governing adverse possession of registered titles.” Discuss. 2013A
5. “The integrity of a system of registration depends in large measure upon those purchasing land being able to rely on the fact that unregistered rights can only gain priority in well-defined circumstances.” Do you agree? How effective are the provisions of the Land Registration Act 2002 in meeting this objective? 2013R
6. ‘After 1925 the doctrine of notice occupied a residual role in determining priority disputes between purchasers and holders of equitable interests in unregistered land. However, it is clear that ideas of notice have no place in the corresponding priority rules provided by the Land Registration Act 2002.’ Discuss 2014R
7. In its Third Report on Land Registration LC No.158 (1987) the Law Commission stated that the class of unregistered rights that should bind a purchaser should be ‘as narrow as possible’ and should only apply to rights where it was ‘either not reasonable to expect or not sensible to require any entry on register’.

Discuss. 2018B

13. ‘The new legal code dealing with registered land has been a failure. Important parts of the Land Registration Act 2002 have not been brought into effect. The principles governing unregistered land were preferable because they achieved greater fairness in land dealings.’ Discuss. 2018R
14. “It is a fundamental goal of the Land Registration Act 2002 that the register should provide prospective purchasers with a clear and comprehensive indication of the interests affecting the land they are buying. There are, however, justifiable reasons for allowing some interests to have priority even though their existence cannot be found by looking at the register. The 2002 Act has ensured that the circumstances in which unregistered rights can override registered dispositions are limited.” Discuss. 2019B L
15. “Achieving a complete and accurate register is a central objective of the Land Registration Act 2002. Its achievement is, however, significantly impeded in a number of ways, not least by the existence and scope of the category of unregistered interests that can override.” Discuss. 2019A L
16. Critically assess the scope and operation of (a) overreaching; and (b) the overriding interests found in the Land Registration Act 2002. 2020B L
17. Explain and discuss the extent to which the law provides a satisfactory balance between protecting purchasers and others who have property interests over land where title is: (a) unregistered; and (b) registered. 2020A L
18. ‘The validity and durability of many third party rights over land depend upon them being registered or protected by entry on the Land Register. For good reason, other rights, most notably the rights of people in occupation of the land, can take effect even though their existence cannot be found by inspecting the Land Register. Overall, the scheme for the protection of third party rights in the 2002 Act works well. It is certainly far better than the corresponding scheme that operated for the protection of third party rights in unregistered land.’ Discuss. 2020R L
19. ‘Any legal regime that allows property rights to be enforceable against a purchaser of the land without the need for such rights to be registered must take great care in determining precisely why, when and how they should enjoy such priority status.’ How far do the relevant principles of (a) overriding interests under the LRA 2002; and (b) unregistered land law succeed in doing this? 2020RA L

MORTGAGES

1. Critically assess the extent to which the current law on both possession and sale strike an appropriate balance between protecting the respective interests of the mortgagee and mortgagor. 2012A
2. “Although the mortgagee gains a right to possess ‘before the ink is dry’ it is more accurate to describe possession as a remedy rather than as a right in this context.” 2013R
3. ‘Although the mortgagee retains the right to possess the mortgaged property, it is better to describe that right as a remedy.’ Discuss. 2014A
4. ‘Although the mortgage is a creature of equity, it is time for equity to relinquish its hold and let statute regulate a device where the residential or commercial nature of the transaction necessarily requires a wholly different degree of legal oversight.’ 2014B
5. ‘There are sufficient and appropriate legal controls protecting the mortgagor both as to the terms that can be included in the mortgage and also the circumstances in which the mortgagee may possess and sell the mortgaged property. It is however questionable whether or not these legal controls give due weight to the need to protect the mortgagee’s security interest.’ 2014R
6. ‘Although historically the creation of Equity the modern law of mortgages, at least in the context of the residential home, is now governed primarily by statute.’ 2015A
7. How far do you agree with the view expressed by Lord Phillips MR in Jones v Morgan (2001) that the doctrine of a clog on the equity of redemption is an ‘appendix to our law which no longer serves a useful purpose and would be better excised’? 2015B
8. “Although described quite accurately as the mortgagee’s right, possession is in practice a remedy.” 2015R
9. ‘The modern mortgage of land is less a creature of doctrine than statute.’ 2016B
10. ‘The rights of mortgagees are too extensive. The law on mortgages is simply oppressive of mortgagors and is insufficiently concerned with the needs of the occupants of ordinary homes. Traditional mortgage law is simply not fit for the 21st century.’

LEASES

1. “Where the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy.” Elaborate this statement and consider the extent to which it provides a useful guide for distinguishing a tenancy from a licence. 2008A
2. “Where the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy.” Elaborate this statement and consider the extent to which it provides a useful guide for distinguishing a tenancy from a licence. 2008A
3. ‘Proof of exclusive possession is all that should be required for the parties to establish that a lease has been created.’ To what extent, if at all, do you agree with this proposition? 2011A
4. Critically assess what is meant by “exclusive possession” in determining if there is a lease. Should exclusive possession be all that the law requires for the existence of a valid lease? 2012B
5. “Although identifying the legal distinction between a lease and a licence is straight- forward, applying the distinction in practice has proved far more problematic.” 2013A
6. ‘Ample scope for improvement and simplification.’ How far do you agree with this assessment of (a) the essential legal characteristics to create a lease; and (b) the legal principles relating to forfeiture for breach of a leasehold covenant other than one for the payment of rent? 2014A
7. ‘Even though the approach established in Street v Mountford (1985) to determine whether exclusive possession exists is less important these days, it is workable and sensible for single occupiers. It has, however, proved to be problematic when it comes to cases involving joint occupiers.’ Do you think establishing exclusive possession should be enough for a valid lease to exist? 2015B
8. ‘In Street Mountford the House of Lords assured us that a valid lease has three elements: certainty of term; exclusive possession; and rent. Yet one is entirely unnecessary; another, although technically necessary, can be avoided by either the

draftsman’s or the court’s sleight of hand; and the third, whilst absolutely necessary, is not always sufficient.’ Discuss. 2016B ‘Even though the approach established in Street v Mountford (1985) to determine whether exclusive possession exists is less important these days, it is workable and sensible for single occupiers. It has, however, proved to be problematic when it comes to cases involving joint occupiers.’ Discuss. Do you think establishing exclusive possession should be enough for a valid lease to exist? 2015B

9. ‘There seems little enthusiasm, or rationale, for the Certainty of Term requirement in leases.’ Discuss. 2016A
10. ‘In Street Mountford the House of Lords assured us that a valid lease has three elements: certainty of term; exclusive possession; and rent. Yet one is entirely unnecessary; another, although technically necessary, can be avoided by either the draftsman’s or the court’s sleight of hand; and the third, whilst absolutely necessary, is not always sufficient.’ Discuss. 2016B
11. “Establishing exclusive possession is what matters most to making a successful claim to have a lease over land. However, as the case law illustrates, it is not always straight-forward to establish its existence, particularly where there is multi-occupation of land.” Discuss. 2019B L
12. “In Street v Montford (1985) Lord Templeman identified three essential attributes for the existence of a lease: certainty of term, exclusive possession, and rent. This suggests that the law and its application is settled and straightforward. What is clear, however, is that the legal position is far more complicated and uncertain.” How far, if at all, do you agree with this assessment? 2019A L
13. ‘Of the three legal characteristics of a valid lease it is the rationale and scope of the requirement that the duration of the term must be certain that is in greatest need of reconsideration.’ Discuss. 2019R L
14. ‘The law’s approach to determining whether or not the term of a lease is sufficiently certain requires reform.’ Discuss. 2019R L
15. ‘The legal elements that Lord Templeman identified in Street v Mountford (1985) as essential for a lease to exist can now be regarded as stable and settled. Admittedly,

LEASEHOLD COVENANTS

1. To what extent does the Landlord and Tenant (Covenants) Act 1995 represent a satisfactory framework for the law providing for the passing of the benefit and burden of the landlord’s and the tenant’s covenants? 2009A
2. “The law relating to the passing of the benefit and burden of non-leasehold covenants reflect the contractual origins of the doctrine.” Discuss. 2013B
3. Ample scope for improvement and simplification.’ How far do you agree with this assessment of (a) the essential legal characteristics to create a lease; and (b) the legal principles relating to forfeiture for breach of a leasehold covenant other than one for the payment of rent? 2014A
4. Critically assess the need for reform of the rules about the passing of the benefit and the burden of freehold covenants. 2019A L FREEHOLD COVENANTS
5. The current legal position on the passing of the benefit and burden of non-leasehold (also known as freehold) covenants is flawed, unnecessarily complicated and should be reformed.’ How far do you agree with this statement? What, if any reforms, would you advocate? 2016R
6. How far, if at all, do you think the rules governing the enforceability of freehold covenants between successors in title to the covenantee and covenantor are unnecessarily complicated and in need of reform? 2019B L
7. What reforms would you propose to the law governing the methods by which the benefit and burden of freehold covenants may be passed to successors in title of the land belonging to the original parties? 2020B L
8. ‘Confused, unnecessarily complicated, and ripe for reform.’ Discuss this assessment of the current rules for passing the benefit and burden of freehold covenants. 2020A L

EASEMENTS

1. Critically assess the law determining which rights are eligible to be easements, and when such rights may be impliedly created (other than by prescription). Indicate what, if any, reforms you would propose to the current law. 2010A
2. “The scope and operation of the rule in Wheeldon v Burrows is clear and entirely justifiable. Regrettably, the same cannot be said of s.62 of the Law of Property Act 1925.” Discuss. 2013B 3. How far do you agree with the view that the law on the characteristics and creation of easements is surrounded by confusion and controversy? 2019B L
3. “Overly complicated, controversial and ripe for reform.” How far do you agree with this assessment of the current law on: (a) which rights are capable of being an easement; and (b) the methods by which easements can be impliedly created? 2019A L 5. Analyse (a) the extent to which a right of recreation on another person’s land is capable of being an easement; and (b) how the reservation of an easement may be impliedly created. 2020B L
4. ‘At first sight the essential characteristics and scope of easements appear to be clear and free from controversy. The same might be said of the principles governing their implied creation. However, on closer inspection this couldn’t be further from the truth.’ Discuss. 2020RB L

This is undesirable and adverse possession should be entirely removed from English land law.’ Discuss. 2018A.

8. ‘The law on adverse possession was fairer before the Land Registration Act 2002. The previous approach made it possible for unused land to pass to new owners who would actually use it. The modern approach is too restrictive.’ Discuss. 2018B
9. ‘The Land Registration Act 2002 has significantly diluted the impact of the law on adverse possession, at least in relation to registered land. This shift in the law is entirely welcome.’ Discuss. 2018R 10. To what extent do you think the impact of adverse possession in land law has been justifiably curtailed by the provisions contained in the Land Registration Act 2002? 2019B L
10. “The Land Registration Act 2002 has entirely overhauled and watered down the law on adverse possession, providing a new regime and procedure that will rightly result in fewer claims succeeding.” Discuss. 2019A L 12. Critically assess the circumstances in which a claim to adverse possession may succeed both where a freehold estate is (a) registered; and (b) unregistered. 2019R L 13. Discuss the impact of the provisions of the Land Registration Act 2002 on claims to adverse possession of land with freehold title. 2019R L 14. Explain and discuss the extent to which the law differs where a claim to adverse possession is made in relation to registered rather than unregistered land. 2020B L
11. ‘Before the Land Registration Act 2002, claiming title to ownership rights by adverse possession involved the application of case law in combination with principles of limitation. This entailed much the same process irrespective of whether title to land was unregistered or registered. The 2002 Act has not completely abolished adverse possession. However, it has most definitely had a welcome impact on it, radically altering the circumstances in which the title of the registered owner can be displaced.’ Discuss. 2020R L 16. To what extent does the Land Registration Act 2002 represent a fundamental and justifiable shift in the law’s approach to adverse possession? 2020RA L

CO-OWNERSHIP

1. What, if any, changes do you think should be made to the law on: (a) the methods of severing a beneficial joint tenancy; and (b) the settlement of disputes between co- owners? 2016R
2. ‘The law on co-ownership of the home is of limited application in the modern world. The concepts of joint tenancy and tenancy in common belong to another age. However, the Trusts of Land and Appointment of Trustees Act 1996 did achieve a progressive recognition of the rights of beneficiaries under trusts of land which empowers the court to protect the vulnerable in their homes. Unfortunately, the case law has not yet shown sufficient concern for the protection of occupants over other interests.’ Discuss. 2017A
3. ‘The concepts of joint tenancy and tenancy in common are convoluted and obscure. By contrast, the Trusts of Land and Appointment of Trustees Act 1996 has introduced important new ways of protecting the rights of beneficiaries to land which reach beyond the limits of the case law.’ Discuss. 2017B
4. ‘The Trusts of Land and Appointment of Trustees Act 1996 made important changes to the rights of the occupants of property held under trusts of land. However, there are several problems with this statutory scheme. The case law on the 1996 Act and the problematic doctrines of joint tenancy and tenancy in common remain in a confused state.’ Discuss 2017R.
5. ‘It is clear that the courts see the constructive trust as providing the best method for resolving disputes about co-ownership of residential property where the parties are unmarried. However, what is less settled are the circumstances which will give rise to a successful claim and the extent of the entitlement it will confer.’ Discuss. 2019R L
6. Critically analyse the approach of the courts to claims to acquire a share in the beneficial ownership of land by means of resulting and constructive trusts. 2020B L
7. ‘Although the joint tenancy in equity should not be abolished, the methods by which a joint tenancy can be converted into a tenancy in common would benefit from being simplified and streamlined.’ Discuss. 2020B L
8. What reforms would you propose to the law governing: (a) the ways in which a beneficial joint tenancy can be severed; and (b) the court’s jurisdiction to determine disputes about whether co-owned land should be sold?

8. ‘There are good reasons for land law requiring the use of formalities such as deeds and writing, but there are also convincing justifications for allowing rights to be created informally by means such as constructive trust and proprietary estoppel.’ How far do you agree with this view? 2015A
9. ‘Rather than undermining formalities, proprietary estoppel is the critical safeguard by which their requirements can be justified.’ Discuss. 2016A
10. ‘The relationship between constructive trust and proprietary estoppel remains difficult to discern with any great degree of confidence.’ Discuss. 2016B
11. ‘Land law needs its formality rules just as much it needs exceptions such as proprietary estoppel to mitigate the harshness with which the rules might otherwise operate. What is problematic is striking the appropriate balance between the operation of the rules and the exceptions.’ Discuss. 2016R
12. ‘The principal strength of the doctrine of proprietary estoppel is its flexibility. The range of remedies which are available in a proprietary estoppel action contrast with the limitations of constructive trusts. Constructive trusts are too uncertain to be of use to litigants in land law disputes.’ Discuss. 2017B
13. ‘Proprietary estoppel is a mechanism for achieving fairness where the law would otherwise cause injustice to the claimant. By contrast, common intention constructive trusts are too rigid and are likely to lead to unfairness. Consequently, the doctrine of proprietary estoppel is the definitive equitable doctrine because it promotes just outcomes, something which is necessary in any system of land law.’ Discuss. 2017R
14. ‘While the doctrine of proprietary estoppel achieves just outcomes in individual cases, the basis for the doctrine itself is far from clear. Because different courts have apparently decided different cases on different bases it is difficult for individual litigants to know their rights.’ Discuss. 2018A
15. ‘The doctrine of proprietary estoppel should be organised around a general principle of “unconscionability” and not simply around the technical limitations of “detrimental

reliance”. In this way, the courts will be emboldened to create a wide range of possible remedies for litigants. Such a large amount of land law is dedicated to rigid rules that proprietary estoppel is necessary to act as a safety valve so that fair outcomes can be reached in individual cases.’ Discuss. 2018B

16. ‘The doctrine of proprietary estoppel can be criticised because it is impossible for litigants to know in advance what their rights might be at the end of the legal proceedings. However, proprietary estoppel does allow the courts to prevent people from being treated unconscionably no matter what the strict legal rules about the formal creation of property rights in land require.’ Discuss. 2018R 17. ‘Formality requirements are essential in land law, not least in promoting certainty. However, the operation of proprietary estoppel, whether to allow for the creation of beneficial interests informally or to assist where no valid land contract exits, is far from clearly defined.’ Discuss. 201 9R L 18. Explain and discuss the distinctions in the way the doctrines of proprietary estoppel and constructive trusts operate to allow a person to claim proprietary rights in land. 2020A L 19. ‘The courts have developed the principles of proprietary estoppel flexibly, making it an extremely effective way of curbing the unacceptable effect of strict property rules (particularly those requiring formalities). However, that has meant the principles have, at least in some respects, become uncertain and unclear.’ Discuss. 2020RB L 20. Proprietary estoppel and constructive trusts are similar yet different doctrines by ‘which rights in land may be claimed.’ Discuss. 2020RA L