Detailed and comprehensive Notes on topic one of Land Law - formality rules and ownership. Includes textbook, lecture, case and critical reading notes.
Essential!!
To your success in academics!!
Stroud – Making Sense of Land Law – Chapter 1 – The Essence of Land Law (Pages 1-
29) (as well as other notes):
The Ownership of Land:
Began with the Norman Conquest.
It is possible to say that, even now, no one really owns land – in the sense that it is all
held from the Crown (even fee simple reverts to the Crown if someone dies
intestate).
What is property? – property is about rights over things – people with such rights
are owners.
Owners have a range of property rights – they can use their property as they wish,
exclude others from it or grant them access to it and they have the power to transfer
title etc.
There are 2 tiers of interest in land –
1.) Legal estates – freehold and leasehold.
2.) Proprietary interests – subservient to legal estates.
- 18 types as defined by numerus clausus principle.
- Lack exclusive possession.
- whilst those with these interests do have some rights
in/over the land – e.g. holder of an easement has a transmissible and non-determinate
right in the land subject to the easement, they are not said to have ‘ownership’.
Prior to LPA 1925 there were a large number of estates and legal interests in land.
However, LPA S1(1) reduced the number of legal estates to 2 (freehold and
leasehold).
And LPA S1(2) reduced the number of interests in and over land to 18 (as defined by
numerus clausus principle).
2 types of legal estate (LPA S1(1) – Freehold and Leasehold.
Leasehold estate is one that goes on for a set period of time.
Freehold – duration is unknown when it is first acquired.
Freehold:
, Most important type of freehold estate:
1.) Fee Simple Absolute in Possession (most common – it gives its holder the right
to exclusive possession of the land forever. It can only be brought to an end if its
holder dies intestate (in which case it reverts to the Crown).
- ‘Fee’ (capable of being inherited).
- ‘Simple’ (no restrictions on who can inherit it).
- ‘Absolute’ (no conditions attached to the holding of the estate – it won’t
come to an end at the happening of some specified event (as a lease may)).
- ‘In Possession’ (the grantee has a right to immediate possession of the land
(even if he leases it out etc, he retains ‘possession’ in this sense).
heirs).
This fee simple right to exclusive possession extends to ‘Cujus est slum, ejus est
usque ad coelem ed ad infernos’ – ‘To whomsoever the land belongs, to him also
belongs the space up to heaven and down to the depths’. Whilst this clearly doesn’t
extend to heaven (as you can’t say a plane flying at 30,000ft over your house is
trespassing on your property), it does extend upwards to some extent as you can
have property rights for bridges etc (check)
If X is leasing an estate from Y (that Y holds in fee simple absolute possession) for 10
years, then during this time Y continues to possess the estate. This is because ‘in
possession’ is not the same as ‘in occupation’ and thus, whilst X is in occupation, Y is
still enjoying his interest in the estate at the present time and his interest is not
postponed to a future date (being ‘in possession’ also includes receiving rents and
profits).
If X is leasing the land, he can sub-lease it to someone else (there are no restrictions
on how many times an estate can be sub-let).
We talk of ‘ownership of land’ however correct way of putting it is to say that
someone ‘holds the title to the land’ – here title means a claim to ownership of an
estate in land.
Leasehold:
A lease also gives its holder a right to exclusive possession.
A lease involves the grant of a right to exclusive possession of land to a person.
Leases can only be granted by someone with exclusive possession (either someone
with a fee simple absolute in possession or a leasehold themselves (in which case a
sub-lease is created).
Requirements of a lease are set out in Street v Mountford by Lord Templeman: ‘to
constitute a tenancy (lease) the occupier must grant exclusive possession for a fixed
or periodic term certain in consideration of a premium or periodic payments’.
, 1.) Intention:
- Even if you word a contract to specifically state that you are not creating a
lease, you can still have a lease if the above formal requirements are met
(Street v Mountford).
2.) Exclusivity:
- Any arrangement that fails to confer exclusive possession will not
constitute a lease.
- Hence the decision in Hill v Tupper – where the exclusive right to put
pleasure boats on the canal could not amount to a lease because it failed
to confer an exclusive right to possession of the canal, it only conferred a
franchise of boating rights.
3.) Certainty of term:
- Whilst there is no limit to how long the term of a lease can be, there must
be some limit, and this limit must be certain.
- E.g. Lace v Chantler – a lease for ‘the duration of the war’ was held not to
be certain enough.
- Had the term been for ‘999 years or until the end of the war, whichever is
sooner’ – then this would have been valid.
4.) Premium or periodical payment:
- Dubious as to what exactly this means.
- But in Skipton Building Society v Clayton, the CoA held that an agreement
to purchase a title to a house for one third of its true value and guarantee
the vendors the right to remain living in the house rent-free for the rest of
their lives had the effect of granting the vendors a tenancy of the house.
How do you show a claim to ownership of an estate in land?:
This used to be determined by possession (‘possession is nine-tenths of the law’),
your possession could only be defeated by someone who had a better right to
possession (by better we mean prior – so someone who possessed the land before
you). However, a number of limits were placed on this by Limitation Acts (barred any
person with prior possession from claiming land after a certain period of time had
passed – this is how squatter’s rights have developed as, if you stop possessing land
for a certain period and someone else moves in, then you are barred from reclaiming
the land).
This is much less important today as land in UK is classified as unregistered land and
registered land – registered land is much harder to acquire by possession as a
person’s title to land is entered on a register and this title is guaranteed by the state.
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