Introduction
This essay provides outlines for two parts of a law exam question, focusing on UK land law and trusts law, as studied in an LLB programme. Part (a) advises on enforcing covenants in a land transfer scenario, outlining the main arguments, structure, and key authorities. Part (b) explains and critically evaluates tests for certainty of objects in trusts. These outlines demonstrate a sound understanding of the topics, drawing on case law and statutes, while highlighting limitations in the law. The discussion aims to address complex problems logically, with some critical analysis, targeting an undergraduate 2:2 standard. Together, they total approximately 500 words, excluding references.
Outline for Part (a)
Main Argument: Vigo can likely enforce the restrictive covenant (a) against Enterprise Ltd to prevent hotel development, but enforcement of positive covenants (b) and (c) is uncertain due to rules on running of covenants. Remedies include injunctions or damages if breaches occur.
Structure: First, assess if covenants bind successors under Land Property Act 1925 (LPA 1925) s.79 and common law principles. For restrictive covenant (a), check if it touches and concerns the land, benefits retained land (now Vigo’s), and was intended to run (implied by LPA 1925 s.79). As the transfer was in 2000, assume registered land; covenant must be registered for notice under Land Registration Act 2002 (LRA 2002) s.32 (Haywood v Brunswick Permanent Benefit Building Society, 1881). It restricts use, so enforceable in equity per Tulk v Moxhay (1848), provided no annexation issues (Federated Homes v Mill Lodge Properties, 1980). Enterprise’s hotel plan breaches this, allowing Vigo to seek an injunction (typically granted for negative covenants) or damages in lieu under Chancery Amendment Act 1858.
For positive covenants (b) and (c), they generally do not run at law (Rhone v Stephens, 1994), unless benefit and burden principle applies (Halsall v Brizell, 1957)—e.g., if Enterprise uses the drive, they may be bound to contribute 50%. However, the tea ticket (b) seems personal and unenforceable against successors. Structure concludes with remedies: specific performance unlikely for positives, but declaration possible.
Authorities: LPA 1925, LRA 2002, Tulk v Moxhay (1848), Halsall v Brizell (1957), Rhone v Stephens (1994), Federated Homes (1980). (248 words)
Outline for Part (b)
Main Argument: The tests for certainty of objects in trusts vary by trust type, with fixed trusts requiring strict list certainty, while discretionary trusts use a broader “is or is not” test, but inconsistencies in application create uncertainty needing clarification for fair trust administration.
Structure: Begin by explaining tests. For fixed trusts, complete list certainty is required (IRC v Broadway Cottages, 1955), meaning all beneficiaries must be identifiable to divide property equally. For discretionary trusts, McPhail v Doulton (1971) replaced this with the “is or is not” test from Re Gulbenkian (1970) for powers of appointment—trustees must determine if any claimant fits the class, allowing conceptual but not evidential certainty. However, evidential issues persist, as clarified in Re Baden (No 2) (1973), where Stamp LJ’s strict view contrasts Sachs LJ’s practical approach, leading to inconsistent judicial interpretations.
Critically evaluate: The law shows progress from rigid to flexible tests (per McPhail), aiding complex trusts, but lacks clarity—e.g., “friends” may be conceptually certain (Re Barlow, 1979) yet evidentially challenging. This uncertainty risks trusts failing, undermining settlor intent, especially in large classes. Arguably, a unified test or statutory reform could resolve limitations, as scholarly opinions like Pearce and Stevens (2018) suggest; however, it balances trustee discretion with beneficiary rights. Generally, the area needs Supreme Court clarification for consistency.
Authorities: McPhail v Doulton (1971), Re Gulbenkian (1970), IRC v Broadway Cottages (1955), Re Baden (No 2) (1973), Re Barlow (1979). (252 words)
Conclusion
In summary, part (a) argues Vigo has strong grounds to enforce the restrictive covenant via injunction, with limited options for positives, relying on key cases like Tulk v Moxhay. Part (b) highlights evolving but unclear certainty tests, critiquing inconsistencies that could be addressed through reform. These outlines reflect core LLB principles, demonstrating problem-solving in land and trusts law, though further judicial guidance would enhance applicability. Implications include better protection of property rights and trust validity in practice.
References
- Dixon, M. (2018) Modern Land Law. 11th edn. Routledge.
- Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403.
- IRC v Broadway Cottages Trust [1955] Ch 20.
- McPhail v Doulton [1971] AC 424.
- Pearce, R. and Stevens, J. (2018) The Law of Trusts and Equitable Obligations. 7th edn. Oxford University Press.
- Re Baden’s Deed Trusts (No 2) [1973] Ch 9.
- Re Barlow’s Will Trusts [1979] 1 WLR 278.
- Re Gulbenkian’s Settlements [1970] AC 508.
- Rhone v Stephens [1994] 2 AC 310.
- Tulk v Moxhay (1848) 2 Ph 774.
