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Property Law Module Summary
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This summary details all of the relevant information needed on the property law module. All notes are grade 2:1 and above.
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Property LawProperty Law
Lecture 1 – The Nature of Land
What is Property Law?
Property law is the law relating to physical objects. This can be relevant in other areas of
law, such as criminal law, tort law and contract law, but these are issues are not always the
concern of property law. Property law can also be viewed as the law relating to the
ownership or land. It is also concerned with the ability to use objects in a certain way or for
a particular period of time. Property law is concerned with the transfer of ownership rights.
It is also concerned with the ability to exclude other people. The nature of priority of
property interests.
Property rights and remedies go beyond mere personal rights and remedies. Property rights
entitle an individual to a right to specific property.
- A personal right is one that usually entitles the owner to a personal remedy such as
compensation if the right is breached. This is usually referred to as a breach of
contract. The owner of the house can exclude the right to who enters their house.
This gives a right against the person.
- A proprietary right will entitle the holder to the property which is often more
advantageous than a personal remedy. This enables you to go after a particular
property.
It is therefore important to establish whether somebody has a proprietary right and if more
than one person has a right, which one is the strongest. The nature of ownership is
determined by law. Property rights are prescribed by law. This holds that the law will outline
who owns something. The law recognises a limited number of property rights, each with
distinct consequences. Property rights are fixed by law, parties are therefore not permitted
to create new rights. Property law is also concerned with the extent to which property rights
will bind third parties. If someone sells a property without consent, can this be recovered?
There are different levels of ownership recognised in English law. Ownership is generally the
right to use the property in any way the owner wishes.
- The right to sell, transfer or leave it to somebody as a gift, charge or mortgage the
property. A mortgage entitles the owner to have the funds to pay for the house. If
they do not pay the money, the lender can sell the property.
- The right to dispose of or destroy the property.
- The right to exclude others from the property.
- The right to take any benefit from the property, e.g. rent and things that grow on the
land.
Ownership is not always unrestricted. For example, there are both public and private
restrictions on how an owner can use his property.
- Public restrictions include planning laws and regulations.
- Private restrictions include agreements entered into with neighbouring land owners
to use or not the use the land in a particular way. This is referred to as covenants.
, The land may only be used for a particular purpose or your neighbour may have an
existing right over land before you own it.
As the owner, you are entitled to any benefits of the land, such as money for rent, or fruit
that may be growing on the land.
Realty and Personalty.
English law has traditionally differentiated between realty and perosnalty.
- Realty or real property is land.
- Personalty or personal property is all other types of property.
A wide range of interests apply to land and there is a system of registration that determines
whether rights will bind third parties.
The Nature of Land
Common law holds that land means the soil, the rocks beneath and the air above.
S205 (1) (ix) Law and Property Act 1925 - “land includes land of any tenure, and minds and
minerals…buildings or part or buildings…and other corporeal hereditaments, and an
easement right, privilege, or benefit in, over, or derived from the land.
S132 (1) Land Registration Act 2002 – buildings and other structures, land covered with
water, mines and minerals whether or not held with the surface.
Anything attached to the land becomes part of it, known as a fixture. Anything not part of
the land is known as a chattel.
Land as a Commercial Asset
1925 legislation encouraged the recognition of land as a commodity to be exchanged rather
than remaining static. The value of land comes from its ability to be bought and sold “only
worth what someone will pay for it”. Because of the value of land, it becomes an asset that
can be used in commercial transactions. For example, a loan can be secured against a
property to provide a remedy for the creditor in case of a default. The most common form
of secured borrowing is the mortgage. This means that the law cannot simply be concerned
with the rights of the owner/ owners.
Personalty choses in action and choses in possession.
Chose in possession – a physical object, e.g. a motorbike or boat.
Chose in action – intangible property, a legally recognised right such as a debt of money in a
bank account.
It is not possible to physically deliver choses in action, so different rules apply. However, it is
possible to assign or transfer a chose in action.
Law and Equity
Traditionally, the common law courts only recognise a limited number of rights. This is a
historical distinction where legal rights could often lead to harsh results and unfairness. A
separate jurisdiction was operated by the courts of chancery which sought to mitigate the
harshness of the common law. The separate jurisdictions have now been merged and the
courts deal with both legal and equitable property rights and interests.
Equitable rights usually differ in terms of the circumstances that they will bind third parties.
Equitable rights will apply where the common law will give a harsh result. Usually, notice is
,needed for an equitable right to bind a third party whereas legal rights will bind the world.
Equitable remedies differ from legal remedies and tend to be more specific and personal.
Usually arises in the context of land changing hands. For example, if an agreement were to
be made with a neighbour that they cannot build on land, will the purchased be bound by
the promise made to the neighbour?
Third Party Property Rights
For personal rights created by contract, privity of contract will apply. The contract will only
operate between the parties who created it, except for in limited situations.
A + B have a contract. If A breaches the contract, B can sue them. However, A will usually
only be liable to B, not the rest of the world. Property rights operate outside these rules and
usually, if correctly registered and created, will bind third parties. Property rights are also
different from personal rights in that they are assignable and transferable.
The Principle of Alienability of Land
Traditionally, land would stay in families and pass down through generations. Property
rights would be transferred, but this would usually be on death. Property law was radically
reformed in 1925, leading to a range of legislation. Purpose of this was partly to establish
the principle of alienability of land and to encourage it to pass hands.
Creation and Transfer of Property Rights.
The law specifies rules for the creation of property interests. For example, if I want to give
someone a right of way over my property, there are rules as to how that right is created, by
deed for example, and also registration rules to protect it. If rules are not complied with, the
rights will usually be personal only. In respect of the right of way, it means that if my
neighbour sells his land, the buyer will not be able to use the right. There are also specific
rules on how property rights can be transferred. For example, I cannot verbally transfer the
legal title to my house. The transfer must be in writing, by way of deed and must be
registered in order to become valid. Sometimes, if formalities are not complied with, an
equitable right will still be created. For example, I sell you my house, and you pay me
money, but the transaction is not recorded in writing or registered. You will have an
equitable interest in my property, but the legal title will not have been transferred.
Theories of Property Rights
Social convention – having the system of property.
Morality – there is a moral right to claim resources.
Natural law – property rights are pre-social.
Labour theory of property (Locke) – you own your own life and body, and it follows that you
must own the products of that life, and that those products can be traded in free exchange
with others.
Libertarian socialism – a person must make continuous use of the item or else lose
ownership rights. This is usually referred to as “possession property” or “usufruct”.
Absentee ownership is illegitimate and workers own the machines or other equipment that
they work with.
Communism / Marxism – communism and other kinds of socialism have held that private
property is inherently illegitimate. Creation of private property always benefits one class
, over another, giving rise to domination through the use of this private property.
Communists are not opposed to personal property that is “hard-won, self-acquired, self-
earned” by members of the proletariat.
Private property is theft.
Property Law and Human Rights
Protection of property under the ECHR.
Article 1 of the First Protocol:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No-one shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by the general principles of international
law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to
enforce such laws as it deems necessary to control the use of property in accordance
with the general interest of to secure the payment of taxes or other contributions or
penalties.
JA Pve (Oxford) v UK (2007) – concerned a claim for adverse possession, effectively
depriving the owner of the property and giving it to another. This may be a potential breach
of Article 1 as proportionality is a defence. The ECHR held that the English law is
proportionate because it had afforded the owner the opportunity to claim his land and
adverse possession only arose because he had failed to do so. Is it ever right to take
someone’s home from him? This is generally okay as long as damages are awarded. May
also arise in relation to compulsory purchase orders. ECHR opinion is usually that damages
will suffice in this scenario.
Article 8 – Right to Respect for Private and Family Life.
(1) Everyone has the right to respect for his private and family life, his home and his
correspondence.
(2) There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
Article 8 rights may be relevant in terms of mortgage possessions and home rights of
occupant’s vs commercial interests of third parties. Should land be seen as “home” or as a
commercial commodity?
Can Article 8 be used to challenge eviction or occupiers from their homes when the evictor
has good legal title?
Harrow LBC v Qazi (2003)- House of Lords said that the local authority was able to exercise
its ownership rights in evicting occupiers, regardless of human rights implications.
BUT Connors v UK (2004)- ECHR held that sole reliance on legal title is insufficient when
evicting gypsies. Court must consider the proportionality of evicting someone.
Kay v Lambeth LBC- (2006) despite the Connors judgment, the House of Lords followed
reasoning in Qazi.
Manchester City Council v Pinnock (2010)- Supreme Court overruled previous decisions and
confirmed that Article 8 rights had to be considered to determine whether interference was
necessary in a democratic society.
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