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Summary Land Law Lecture Notes & Summaries
Summary study book An Introduction to Land Law of Simon Gardner, Ms Emily Mackenzie - ISBN: 9781841139807, Edition: 2nd Revised edition, Year of publication: - (Lecture Notes)
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1Land La
Lecture Note
CYCLE
Rights Over Lan
Lecture #1: LEGAL & EQUITABLE RIGHT
The Universe of Right
All land in England and Wales is vested in the Crown: individuals cannot own physical land, but can own
an estate i.e. the right to use and control physical lan
William conqueror, 1066 act of conquest (he, the crown) acquired ultimate ownership of all the land
following the conques
• unclear by what could be owned by ordinary peopl
Solution: “Doctrine of Estates”: crown owns physical land itself, subjects permitted the right the use and
control the physical land = estat
• continues to present day and is fundamental to modern land ownin
Modern Day - 2 Types of Estates:
1. Freehold: right to use land for inde nite period of time - laymen would consider this to be ownership
but land itself is owned by the crow
• Can endure for centuries in principle
• The right itself will endure but the owner will change/freehold estate endures but the owner changes.
• Freehold estate is the biggest right that one can enjoy over physical land - considered in layman terms
as ownershi
2. Leasehold: right to use and control land for a xed period of time at the expiry of which the leasehold
estate will come to an end
Ex: 9-12 month lease estate will give you right to use and control that property for 9-12 months and then
the lease expires.
domestic system of land law is an abstract righ
Hierarchy of Rights Over Physical Lan
Example: Claire owns the freehold estate in Blackacre. Her estate is subject to the following rights
i.Richard has the right to use and control Blackacre for 5 years (“leasehold estate”
ii.Liam, who lives next door in Whiteacre, has the right to use Blackacre’s driveway to access his hous
iii.Katy has the right to use Blackacre’s elds every Thursday morning to host a Farmers’ marke
Smaller rights can coexist within Claire’s freehold estate —> a leasehold estate can coexist with a
freehol
Liam and Katy’s rights are less extensive than Claire’s and Richard’
• Illustrates the hierarchy that exists in land law: freehold —> leasehold —> smaller right
• All 4 of the rights in the example burden Blackacr
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• Possible for many people to hold concurrent rights over the same physical plot of lan
in theory, there are an in nite variety of rights that can exist
This in nite variety of possible rights can be rationalized, bc land law has a system of categorization of
rights over land
1. Mortgag
2. Freehol
3. Easemen
4. Lease: exclusive possession at a xed maximum ter
5. Bene cial interest under trus
6. Restrictive covenan
7. Estoppel equit
If a right doesn’t satisfy the content requirement, it falls into the residual green space (outside of all the
bubbles
When categorization rights over land the law is resounding to substance and not to for
• Ex: If Claire gives you a right over Blackacre, the law will determine what rights she’s given you
based on the content of that right
Right in Rem vs. Right in Personam
Bubbles = in rem. Green space = in personam.
Rights over land in a bubble =
Restrictive
Covenant
right in rem
Mortgage
Right that doesn’t fall within
these bubbles into residual
Easement
white space = right in persona
Beneficial
interest
under trust
Freehold
Estoppel
equity 1. Right in Rem (proprietary
Lease right/interest): right over land
which is capable of binding 3rd
parties —> who aren’t privy to
the right’s creatio
Due to the fact that the “right in rem” sticks to property and so can bind a purchaser of that property
notwithstanding that the purchaser had nothing to do with the right’s creatio
• Can bind a purchaser of that propert
“capable” —> doesn’t necessarily bind a 3rd party, whether it does or doesn’t depends on further
conditions needing to be me
Ex: Easement: “right in rem” —> this means that it sticks to the land which it burdens, capable of binding
a 3rd party. After giving Liam the right to use the driveway, Claire sells Blackacre. Liam’s easement is
capable of binding you based on certain factors that are satis ed. You have to do what Claire did before
the sale.
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, Right in rem and right in personam: definition
3
A right
vRight
2. in rem (or(personal
in Personam “proprietary
right):right”; “interest”)
right over is isa only
land which rightcapable
over land whichtheis parties that
of binding
capable
originally of binding
created third bind
it - cannot parties
a 3rd party. Katy’s right will be enforceable with Claire but can’t bind
you when you buy Blackacre from Claire. Katy only has a right in personam, cannot have an impact on
someone who wasn’t privy to its creation
v A right in personam (or “personal right”) is a right over land which is only capable
of binding the parties that originally created it
Claire Sale of freehold You Claire Sale of freehold You
Liam Liam Katy
Land law can permit the burden of contracts to be enforced towards 3rd parties = differentiation
between law of contrac
Wary of allowing too many “rights in rem” to exist, hence the “numerous clausus” principl
The Numerus Clausus Principle: “Closed Number
The number of “rights in rem” can strictly controlled/limited
Why is the law keen to adhere to this
• Allowing a right to operate “in rem” necessarily causes harm
• “Rights in rem” restrict the utility of land to a purchaser
• Affect land’s marketabilit
If there are many “rights of rem” burdening Blackacre, it will become unattractive to purchasers
• Deliver harm to the purchaser’s autonomy
On the the other hand, “right of rem” bene ts the right holde
• This bene t is pronounced in the instances where it is important for the right to endure following the
sale of the burdened land
Ex: the only way to get his car to his house is to use Blackacre’s driveway and if the new sale of the house
doesn’t bind you then Liam is at a detriment.
The law needs to engage in a balancing exercise: ensure that when a “right of rem” is accepted, the
bene t outweighs the detriment of the market in general and the purchaser’s autonomy.
Legal vs. Equitable ‘Right in Rem
Final distinction from within the "right of rem” camp
2 distinct types of “right in rem
1. (potentially) Legal “rights in rem”: (i) freehold, (ii) leasehold, (iii) easement, (iv) mortgage —>
CAPABLE of being legal (conceivable for these to be legal, but it might be because of a lack of formality
that these don’t take effect in law but instead take effect in equity
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2. (necessarily) Equitable “rights in rem”: the other rights in rem: (i) restrictive covenant, (ii) estoppel
equity and (iii) bene cial interest under trust are NECESSARILY equitable —> can never take effect in
law
Potentially legal vs. necessarily equitable rights in rem
Restrictive
Covenant
Mortgage
Easement
Beneficial
interest
under trust
Freehold
Estoppel
Purple = potentially legal
equity
Orange = necessarily equitable
Lease
Which one you get is based on the level of formality of the righ
Historically this distinction was: (i).Legal = recognized in common law
(ii) Equitable = recognized in court of chancery
These courts have merged, so in a sense the signi cance of the difference has reduced but remains as a
historical hangover and retains some importance.
How Do Rights Over Land Arise
Organized vs. Disorganize
Rights over land may arise (i) in an organized manner; or (ii) in a disorganized manne
1.Organized Right: because the freeholder intends the right to be created — intentional right
Ex: Claire giving Liam an easement freeholder, deciding to give someone a right. The right arises
because Claire wants it t
• But intent in and of itself is insuf cient to create a right over lan
• The law demands in addition that the intent be recorded in a formal document
Organized Acquisition—> Formalities: must be compliant with formality requirements for an organized
right to arise
• If the law’s formality is not adhered to then you won’t have successfully created the right you wanted
t
• The formality required to create a right is not uniform - different formality requirements apply to
different right
• formality to create legal right over land is more demanding than what is needed to create an
equitable righ
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