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Land LawLecture Notes
,Week 1 – Topics and Themes
What is Land Law?
Its not simply a subject matter at Peter Birks says as its not just all law that relates to land as
so much law relates to land
Nor is it a legal category like ‘property rights’ because you can have PR in loads of things like
ideas etc
The 3 key features were interested in are: nature, creation and protection of interest in land
Key Questions for this module:
We focus on land law doctrine relating to specific:
- Questions,
- Situations, and
- Kinds of “interests in land”
As you approach each topic/sub-topic, you should ask yourself the following things:
- What proprietary interest(s) does each party have?
- How do we know they have such interests?
- What might that interest enable them to do/stop other people from doing?
The textbook uses the same three questions
but in different terms.
- Content is how we classify the right
eg a lease has to have exclusive
possession (Q1)
- Acquisition is the special rules to
follow to gain that right (Q2)
- Priority and Defences competing
rights for the same piece of land(Q3)
Concepts of Property
We’re starting to move away from the term ‘’ownership’’ to thinking about who has the
right to do what in respect of a thing ‘’bundles’’ of rights and ‘’strands of economic
potential’’
We don’t just want to know what rights someone has but rather where they come from?
Property is fundamentally Social
‘According to a deeply pragmatic approach which characterises much of the English law of realty, the
phenomenon of “property” in land is simply a product of behavioural reality or socially constituted
fact’ – Gray & Gray
,But what do we mean by “social”?
Land law is a/the private law subject but it inevitably interfaces with other branches of law
(planning, environmental etc.) and public (housing) resolving conflicts
Relations with other people (Rose).
Within doctrine we have formal/informal interests.
Social power relations? Encodes these? Impacts power dynamics which has an influence
when it comes to developing policy and new laws
Market Logics in Land Law
19th Century and before
Land held by (even) fewer people
Landowning entitled you to vote, tightly held by relatively few aristocratic families as the
basis of wealth, land law prioritised keeping land in the family (links to equity).
But Now
Industrialisation, urbanisation
Land no longer the most important form of wealth (rise of company form and managed fund
with diverse portfolio).
Land freed up for involvement in profit-generation.
Utilitarian thinking (Rose, page 3) encourages wealth maximisation.
Law and property Act 1925
Law of Property Act 1925
Transfer of land easier and more certain, simpler, set up the architecture of modern land
law.
Reduced the number of estates in land to two.
Protected other types of interests (i.e. family wealth relations) using equitable interests (not
registrable).
Registration conceptualised as “mirror of title”, as reflecting “real world rights and
“protecting them by registration” (s43 LPA 1925).
All above made it more attractive to get land and trustworthy
But is land just another tradeable asset?
Not really because if we put a lot of focus into it being fundamentally social and if it is then
it’s not just an asset
Margaret Radin
Margaret Radin: The conditions of human freedom may not be preserved only through a
freedom to alienate.
- Some realms of social life should be off-limits to commodification
- Such realms are ‘delineated in a way that is evolutionary and provisional… [and/
partially structured by the law’
- She is critical of the idea of reducing land to a tradeable asset as it has a lot of social
significance
, Market logics directly shape doctrine via…
Commercial practice,
Reform,
Judges reasoning etc.
Registration and its Politics/Morality
Land Registration Act 2002
Move towards “title by registration”, producing ownership not just reflecting it (think about
s27 LRA 2002).= certain types of interest will not take affect in law until they have been
registered
Paved the way for e-conveyancing.
Sounds great?
Clear title facilitates trade and reduces resource wasting conflict (Rose, page 16).
More clarity for you to see what you would be bound by
Mirror principle, register reflects all rights affecting a transaction (i.e. those that will bind 3 rd
party purchasers). 3rd party know they are getting rights from a pre-existing freehold
Curtain principle, purchaser shouldn’t have to go behind the register.
Insurance principle, state-backed guarantee of your title. Boosting the system and giving
people the confidence to buy land
But, subject to overriding interest! A practical objection…
Some things are impossible to register. E.g all one year student leases would be a nightmare
to register
What should be able to override and when? Something of a vexed and politically charged
question.
But, subject to overriding interest! A conceptual objection…
‘the development of land registration… closes out the idea of property as a way of “being in the
world”, of land as the physical, organic basis for human activity, a favour of a vision of property
as a commodity asset to be traded as efficiently as possible in pursuit of capital gain’ – Great
Debates in Land Law, 109
Squatting and “land law morality”, does the “registration fetish” get in the way of
perfectly good land law doctrines that might better serve social, legal and economic
aims?
Squatting is when someone deliberately enters property without permission and lives
there, or intends to live there
Points of interaction?
Ask yourself
- How does registration shape our concepts of property?
- Does seeing land as a market asset have to change our concepts of property?
- Is registration simply the next step to an increasingly marketized and commercial view of
land law, impacting on the foundations of our communities and societies?
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