How do I tackle advising on a land law problem?

It is not possible to provide an infallible method of dealing with all land law queries but I hope that those tackling them may find the following guidance of some assistance. Used correctly, the same approach works both for a young lawyer who has to advise a client on such issues for the first time and for a law student facing examination questions or assessed work.

Break the issues down into smaller pieces

1. As is true of all legal problem-solving, the key to success is to–

  • break the issues into a series of smaller questions to be addressed,
  • arrange the questions into a logical order,
  • check that you have made all the necessary links in the chain of questions,
  • and answer the questions.

What follows is an attempt to help you through the process of asking yourself the right questions because once you are asking yourself the right questions there is every chance that the answers will become fairly clear. Land law is a legal subject in which much of the art lies in spotting what questions lie beneath the surface of the problem you are addressing.

Advise the client

2. The second key point is that it is essential to advise the person you are asked to advise. Do not fall into the trap of writing a general essay about the area of law in question that does not really address the particulars of the client. In this, advising follows the same rules as answering examination questions - answer the questions that you have been asked, plus any others that arise from and must be answered in order to settle the main question. Do not forget that, in order to advise the client properly, you must also consider anything that is against the client’s case. Make sure that you address any issues that an opponent would be likely to raise.

How to begin

3. I would start by asking myself the following questions to help collect my thoughts.

  • To what general area of land law does this query relate (e.g. is it generally about leases, easements, trusts or whatever?).
  • Do I know whether the land is registered or unregistered title?
  • Is the issue chiefly about whether an estate or right exists or about whether one party can enforce it against another party or parties, or does it involve both?
  • What are the basic rules that relate to the type of estate or right in question and which I need to go through in order to establish that it exists?
  • What are the rules that I need to apply in order to determine whether one party can enforce the estate or right against another party?

Thus far you may just want to do your thinking in your head and this should require only a moment or two.

Plan

4. You should now be able to construct a plan for your research and for advising or for answering an examination question. As a former academic and an examiner I can tell you that your examination answers will be much better if properly planned and, as an advisory lawyer, planning your advice is absolutely crucial. If you have not been in the habit of writing a plan for your work, PLEASE START NOW.

5. Assume that your client, A, wants to claim a right of way over B’s field and that A has been using the footpath in question for 21 years but yesterday B erected a fence to prevent this.

Your rough plan might read like this –

  1. Right of way = easement
  2. Rules of recognition for easement
    Re Ellenborough Park
    • dominant/servient tenements
    • different owners
    • accommodation
    • right “lies in grant”.
  3. Right of way – a common easement.
  4. Acquisition–
    If no express or implied grant
    • (a) necessity
    • (b) implied grant
    • (c)s. 62
    • (d) prescription
  5. Need for protection: registration?
  6. What remedy should be sought?
    Injunction?
    Damages?

6. By the time you have scribbled such a plan for yourself you will realise that, while you must mention all those points in your advice or answer, you will probably need to spend more time on prescription than other points. The plan helps you to decide where to spend your time. In the case of a right of way, you need to explain the matters in (1) and (2) but this will probably be straightforward. 4(d) will need more consideration and may need further sub-divisions into–

  • (i) Common Law Prescription;
  • (ii) Prescription Act prescription; and
  • (iii) lost modern grant.

If you drill down further and look again at the facts you have been given, you will realise that you will also have to consider the relevance of the new fence and thus the law relating to interruptions.

Get any needed additional information

7. Having worked out what the key areas you will need to cover are, if you are advising a real client or are involved in a role playing exercise, you should now decide what if any additional information you will need before advising. One of the key advantages of having a real client, or a person playing a client, is that a meeting, questions or letter may serve to cut down the range of possibilities and allow you to focus your advice.

8. When answering examination questions one does not have this luxury and thus one has to consider all the possibilities given rise to by the few facts provided. Your answer may have to include a certain amount of ‘If X is the case, then Y will apply.’. However, examiners usually give all the basic information that you need to deal with most of the question.

9. In the instance given above, if you have a client, it might well be possible to rule out the possibility that section 62 of the LPA 1925 is relevant by asking the client some questions about prior arrangements in relation to the land affected. You may also want to ask about what discussions (if any) have taken place with the owner of the neighbouring land (or his or her predecessors) and what, if any, documentation exists. If the land is registered, a land registry search will also be advisable in order to ensure you know the current state of the register entries. If you are having a meeting with the client, rather than writing a letter, make a list of questions you will need answered and check that you have gone through all of them. Clients do not always give information in a methodical manner and you will have to ensure that you structure the meeting in such a way that you are sure that you have all you need. There is nothing worse than realising 10 minutes after the client has gone that you forgot to ask something vital.

Research

10. If you are in practice, you will realise that ensuring you ask the right questions means doing some research before any meeting or before writing a letter. You will almost certainly also need to do further research after you have the client’s answers.

11. If you are a student dealing with a piece of assessed work or a practical exercise, once again you will need to do research in order to ensure that you thoroughly understand all the legal background to the questions raised by the facts you are given. You may well find that you need to go outside the reading on your reading lists in order to do this.

12. When doing your research, do not rely simply on what textbooks, however eminent, say. It is essential to go back yourself to original materials (cases and legislation) in order to advise properly. If you do so, you may be surprised to discover that, sometimes, what the books say about the case or legislation is not quite the same thing as what the case or piece of legislation actually says.

13. When reading cases, read the case in its entirety - do not be selective. You can select the materials you need later but first you need to understand the full context of the decision on which you may wish to rely, or which you may have to counter, should your client ever have to go to court.

14. When reading legislation, do not forget that it must be read as a whole. As a student you may have got into the habit of reading just the relevant sections of an Act but this is a bad habit. Make sure that you check for definitions and, if in any doubt as to construction, you should find it easier to advise accurately if you read the provision in the context of the whole Act of Parliament, or the whole statutory instrument plus its parent Act.

15. If you are answering questions in an examination, you will have to rely on your memory, plus any materials that are permitted in the examination. If materials are permitted, bear in mind that there will not be enough time to start looking things up from scratch. You need to have a good structure in your head of the relevant law and where to find any useful materials. While you are studying the law, try to structure your notes into a logical format. If you get a strong structure into your notes while you are learning, you will find revision and remembering the material in the examination becomes much easier.

Plan again

16. By this point you should have a fairly clear idea as to the advice or answer you are going to give. The next stage is for you to plan your advice. This can be done by making a fresh plan or by adapting your original plan. Use whichever system works best for the particular case but do not start writing without having planned what you intend to write or say (if you are going to advise in a meeting). In many cases you will be advised to summarise your answer at the start of your argument (this is now normal practice when giving advice as a professional lawyer). If you have planned thoroughly, you should know the answer before you start writing.

Other points that may help your thinking

17. A recurrent theme in land law is that the legal ownership and the beneficial (equitable) ownership of an estate or interest may differ. Consider whether this is relevant to the issue that you are addressing.

18. You may also need to consider whether a particular right exists in law or only in equity (for example, “Is this a legal lease or simply an equitable lease?”). Watch out for this issue, whether as the main thrust of problem or an ancillary part of it. This point is often linked to the issue of whether the right in question has to be protected in some way in order to bind a third party.

19. For example, if you are told that A has charged his estate to B for the repayment of a loan and B has now discovered that A has sold the estate to C, you will need to establish –

  1. that B has a right in land (a mortgage or charge);
  2. whether it is legal or equitable (was there a deed?);
  3. what, if any, steps B would have to have taken for his right to bind C; and
  4. whether B took those necessary steps.

The final answer in this question may depend upon whether the land is registered or unregistered. That, in turn may depend upon the date of the transactions.

20. All of this emphasises that you need to consider separately, whether–

  • (1) an estate or interest exists; and
  • (2) if so, whether it is binding on a particular

You may find that the right or estate does exist but that your client or the person you are advising cannot enforce it against the one person that matters (it may, nonetheless, be enforceable against others).

21. In some areas of land law (such as co-ownership) the separation of legal and equitable title is so complete that you may need to work out separately:

  • (1) how the legal estate has devolved, and
  • (2) how the equitable interests have devolved.

I have always found it helpful to map this out in diagrammatic form and you will find examples of how to do this in the Co-ownership chapter in the book (Chapter 17). Diagrams can also be useful in helping a lay client to understand what might otherwise be a difficult area of law to understand for someone without legal training.

22. It is also worth remembering that examiners have a tendency to ask questions that require you to know about the results of recent cases, particularly if they develop the law in some way or clarify earlier decisions.

23. Examination questions and assessed work also often are written in order to see whether you identify exceptions to a general rule. So it may be worth considering whether there is anything in the material that you have been given that raises one of those ‘oddities’. This may not be relevant, but sometimes it will enable you to spot that you have been given a set of facts that requires you to go beyond the basic answer.

Make sure you advise or answer the question

24. One of the most common mistakes of examination candidates, and even of young practitioners, is to write generally about the law relating to an issue, without sufficiently relating the law to the given facts and answering the given question or advising the client. Once you have completed your plan, decide what the answer is or what it may be, subject to the additional information you have identified is needed. At all costs, COME TO A CONCLUSION.

Keep to time

25. In an examination, it is absolutely vital to keep to the correct timing for each question. You will probably know in advance the number of questions on the paper and the mark weighting each carries (if they are not all equal). Make sure that you calculate ahead of the examination the amount of time you may spend on each question and never break those time limits.

26. Exam candidates often make the mistake of thinking that they know more about some questions and therefore will spend more time on them and just sketch in a vague answer to their last question. This is a very foolish approach. It is far easier to get the marks for the basics of an answer than to get additional marks for extra flourishes on your ‘good’ answers. Therefore, spend an equal amount of time on any ‘weak’ questions and dredge up from your memory as much information as you possibly can that is relevant to the issue, and apply it in a structured and logical way.

27. In many professional role playing exercises, and often in court, there will also be a time limit. It is essential to stick to that limit and to ensure that you have structured your work in such a way that you can deal with the whole issue in the time given. There is nothing worse than the reaction of a judge, when the case you estimated would take one day is clearly going to take two because of the way you are presenting the matter.

Question spotting

28. Some examination candidates like to question spot. You might be lucky and just get asked about the few areas you have revised, having concluded that, ‘There are always questions on A, B and C.’. However, it is not at all unusual for there to be a change of examiner or for an examiner to change his or her approach. In such a case you might be unable to tackle the examination at all and this could ruin your career. I have seen many students come badly unstuck in this way. I can only advise you not to rely on question spotting.

29. Do make sure that you know what the syllabus covers and assume (unless your lecturer or tutor clearly says otherwise) that anything on the syllabus can appear on the examination paper.

30. Also bear in mind that, in professional practice, you will have to know all the basics that every lawyer is expected to know, as well as the details of any specialist area in which you work. It is no use telling a judge that you cannot recall the basic rules relating to contractual consideration because you only deal with property matters! So while a law student, it is essential to learn all the basics required in order to be a lawyer.

Practice

31. The best way to learn how to deal with something well, and on time, is to practise. Get old examination papers and practise doing them to time. If you can get the results marked by one of your tutors, ask them to do this. Some students try to get away with doing the minimum of written work. This is highly inadvisable because you are simply depriving yourself of practise in writing well-structured answers and the feedback your tutor can provide.

32. In the same way, if you are a new practitioner, practise your application to the court and check that you have kept to time and have covered everything necessary and in the correct way. If possible, get your pupil-supervisor or supervising solicitor to hear you practise and ask them to comment. If this isn’t possible, practise in front of a mirror.

Best wishes

If you do all of this, you should be a much stronger performer in an examination, when advising a client or when addressing a court. My best wishes for your success in whatever you want to achieve.

Judith-Anne MacKenzie
May 2020

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