Notes about some of the topics.

 General

1. Make sure your questions aren't too long -- don't just reproduce the text!
2. As Professor Owusu says, "Always state the principle clearly". Give a little introduction to each topic. You should not just say something like "Albert will want to see if  this is a building scheme" without explaining the whole concept of the benefit of restrictive covenants running with the land in equity. Mention that there are other methods: assignment and annexation, and state why they do, or do not apply. If they do not apply then you will spend a little less time on them, but you cannot ignore them completely.
3. For each offence listed in a problem question, do not just state the rule -- examine the particular facts to see whether they actually fall into the criteria laid down in the rule. If you have "a case for and a case against", then you must examine the scenario to see what elements are present that are similar to the case for, and what elements are similar to the case against. For example, do not simply say "The collateral advantage is unfair and the Court will not allow it in the mortgage". You have to see whether the mortgagor and mortgagee are business entities or individuals, or individuals who are business entities, etc. See the worksheet on mortgages.

Formalities of Creating Leases (Licence vs Lease)

1. Make sure you define lease (a contract by which one conveys an estate in land to another for a specified time) and licence (a personal right to use the land of another which does not give any proprietary right in the land).
   
2. Slant your response so that you are answering the question. If you are asked about the distinction between a lease and licence, it is fine to speak about the requirements for creating a lease but you should also discuss how these requirements differ from those for a licence? A licensee may also pay rent for a certain term. Street v Moutford says that the chief difference between the lease and licence is exclusive possession, subject to the various exceptions.

 Landlord and Tenant Covenants

1. Always remember that there are two landlord covenants implied into every lease: quiet possession and non-derogation from rent. Do not forget these if you are asked to generally describe the obligations of all parties.
2. In questions dealing with repair, remember that the landlord may not have any obligation to repair, but will likely be interested in doing so to preserve the value of his property
3. Check whether the lease preserves the right of re-entry on breach of any covenant
4. Remember that subtenants are able to apply for relief from forfeiture of the head-lease, but the same conditions will apply (i.e., having to pay all necessary sums)
5. Remember that illegal or immoral use is not automatically a cause for termination -- examine the circumstances. Can a tenant preserve the lease by getting rid of the subtenant?
6. Garbage may come under the breach of the covenant to repair if it remains at the end of the lease where the tenant may be expected to return the property in the same condition, as this is not 'fair wear and tear'. Otherwise it may be considered as not using the premises in a tenantable manner.

Easements (with specific reference to Mitchell v Patterson on the tutorial worksheet and 2012 paper)

1. Remember that you have to first go through the process of discovering how the easement was created. There are four possibilities: Statutory, Express, Implied, Prescriptive. You will not generally find statutory or express, so you will focus on implied and prescriptive. Remember that prescriptive is impossible if 20 years have not yet passed. After briefly mentioning all, you turn your attention to whichever is most likely.
   
2. There are three methods of implying an easement: necessity, Wheeldon & Burrowes, and section 62 (which Prof. Owusu calls statutory implied). It is very difficult to get an easement of necessity -- there must be absolutely no other way of accessing the property. In this case, we are not told that it is the _only_ way. We are told that Mitchell was in the _habit_ of using the driveway, but not that it was necessary. Also we are know that the two properties were always separate, so it is likely that each had its own access. We do not have enough to say that there is an easement of necessity.
   
3. The right-of-way easement in Mitchell v Patterson actually arises under Wheeldon & Burrowes, and also under 62, being a quasi-easement, for the reasonable enjoyment of the property, in use at the time of the sale to Patterson. 
4. You will find that the parking easement does not arise under any of the methods.
5. Once there is an easement, even if it is an easement of necessity, it can be diverted so long as it would serve the same purpose. The Court will weigh the hardship caused to the landowner and the easement-owner. In the present case, it would be undue burden on Mitchell to have to keep the driveway there, but there does not seem to be any disadvantage to Patterson. It is unreasonable for Patterson to object. (I don't have any case law on this, but an internet search revealed the criteria for shifting public and private paths).
6. In terms of the overuse of the easement, the substantial change in the nature of the dominant servient from residential to commercial is sufficient for the Court to grant Mitchell an injunction to block everything but the lawful original use. In fact, he can block the entire easement until the use returns to residential.

Restrictive Covenants (with specific reference to Mandy on the Tutorial Sheet and 2012 paper)

1. 1. Introduction: (discussion of general principles without any mention of the current situation)
   1. The burden does not run with the land in law
   2. The burden runs with the land in equity under Tulk v Moxhay but only for negative covenants. It can be defeated by ‘chancellor’s darling’: bona fide purchaser for value without notice
   3. The benefit runs with the land in law where there is a legal estate. This applies to both positive and negative covenants
   4. The benefit runs with the land in equity where there is annexation, assignment, or a building scheme. Annexation can be
   1. Express
      
   2. Implied or
      
   3. Statutory
   5. How the covenant can be discharged (very hard to prove. They would essentially need to show acquiescence, change in neighbourhood, or impediment of reasonable use.)
2. Analysis of the present situation
1. Does Cynthia have the burden of the covenant not to engage in commercial activity? She will have it under the rule in Tulk v Moxhay. It is a negative covenant, and there is no indication that she purchased without notice.
2. Does Daphne have the burden of the covenant to repair the fence? Since this is a positive covenant, it will not attach to the land under Tulk v Moxhay but may be enforced under Halsell v Brizell, if she derives a benefit from it.
3. We are told that Ursula has the benefit of the covenants expressly assigned to her, so we do not need to spend time on the various methods of how the benefit can run with the land.
4. Have any of the covenants been discharged? No. There has been no acquiescence, and there is no indication that the neighbourhood has changed. But you will want to discuss whether mere rental to tourists is sufficient to be considered a breach of the covenants.

Mortgages

See the mortgages tutorial worksheet. 

Also note the difference between the following:

1. Mortgagee is trustee of the proceeds of sale means that once the sale monies have been paid to him (whether the sale was good, bad or improper), he must hold them in trust to be applied in a particular order: prior encumbrances, costs of sale, current mortgage, subsequent encumbrances, mortgagor
2. Mortgagee is not trustee of the power of sale means that he does not act as the agent of the mortgagor in the sale. He just has a duty to have an arms-length sale and to do all that is reasonable to attain the true market value. 

Condominiums

1. Condominiums are a hybrid between freehold and leasehold in several respects. One is that the unit owners own their units (like freehold), but will still have to pay periodic charges ad infinitum (like leasehold).
   
2. In a leasehold development (such as one set up by National Housing), there is one entity who controls the property, including the common spaces. This entity is separate from the tenants. In condominiums, there is also one entity that controls the property, the Body Corporate, but each unit owner has a share in the body corporate, and therefore a voice.
3. Unit owners are subject to more covenants than freehold, and these restrictions may change as time goes by. For example, all shareholders in the body corporate may decide one day that the units must be painted red, and that owners who fail to comply are in breach.
4. Leasehold and freehold properties are governed by common law and, in the case of leasehold, by the lease. Condominiums are creatures of statute and of their own bylaws. In that sense, company law becomes important in interpreting the bylaws and the rights of the unit owners (shareholders).