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In-depth Property/Land law revision notes
- Module
- Property Law
- Institution
- Plymouth University (UOP)
In-depth property revision notes to aid with coursework or preparing for an exam.
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Property Law Revision SheetIntroduction to Land Law
Definition and rights
Definition
⇒ 'Land' is defined in the Law of Property Act 1925, section 205(1)(ix): "Land
includes land of any tenure, and mines and minerals, whether or not held apart
from the surface, buildings or parts of buildings (whether the division is
horizontal, vertical or made in any other way) and other corporeal
hereditaments".
⇒ This defintion is confusing, but essentially means that land includes both property
you can touch (e.g. your house, some soil, etc.) and other property you cannot
physically touch (e.g. the right to walk across your neighbour's driveway or the right
to take something from your neighbour's land).
⇒ Land law rights attach to the land itself so that any person who comes into
ownership or possession of the land may be entitled to enjoy the benefits that now
come with the land or may be subject to the burdens imposed on the land.
Freehold and leasehold
⇒ It is only posssible to own 'an estate in land' (i.e. if you buy a house you do
not actually own the land, but own an estate in land. This is because all land is
vested in the crown).
Minister of State for the Army v Dalziel (1944): "no subject can own lands
allodially – he can own only an estate in law".
⇒ There are two types of legal estate in land:
1. Estate in fee simple absolute in possession (i.e. a "freehold");
2. Term of years absolute (i.e. a "leasehold") (Law of Property Act 1925, section
1(1)(a)).
⇒ In other words, you can only own the freehold orleasehold of property.
Personal and proprietary rights
⇒ There are two types of rights you must be aware of in land law:
1. Personal rights (i.e. rights in personam): These are rights that only affect
the parties that originally created the right. For example, if A gave permission
to B to lawfully use his property for something (i.e. a licence).
2. Proprietary rights (i.e. rights in rem or proprietary interests): These are
rights that are capable of affecting third parties; not just the people who
originally agreed to it.
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,⇒ Proprietary rights/interests (rights in rem) can be divided into legal rights in
rem (legal interests) and equitable rights in rem (equitable interests):
1. Legal right in rem: the only proprietary rights/interests capable of being legal
are the fee simple, lease (Law of Property Act 1925, section 1(1)
(a)), easements, rentcharge, and the mortgage (Law of Property Act 1925,
section 1(2));
2. Equitable right in rem: all othere interests are necessarily equitable (Law of
Property Act 1925, section 1(3)). For example, the restrictive
covenant, estoppel, and beneficial interests under a trust are necessarily
equitable.
Legal and equitable proprietary rights/interests
⇒ A legal proprietary right (e.g. a mortgage) can only achieve legal status if created
in a certain way: a legal proprietary right must be created by a valid deed (Law
of Property (Miscellaneous Provisions) Act 1989, section 1) (Law of Property Act,
section 52(1)) and be registered under the registered estate regime (Land
Registration Act 2002, section 27(1)).
One notable exception: certain leases do not need a valid deed to achieve
legal status (Law of Property Act 1925, section 52(2)(d)).
⇒ If the above formality to create a legal proprietary right is not complied with, the
right may still take effect in equity in two ways:
1. Pre-conferment contract: if you contract with someone to create
an easements (i.e. a proprietary right that is capable of being legal) at some
future date, but have not followed the requirements above to give
the easements legal status, it may still take effect in equity. This follows the
equitale maxim, 'equity looks as done as ought to be done'.
2. Where you fail to make a legal interest: if you attempt to comply with the
formalities to make your proprietary right achieve legal status, but fail, it may
be given effect in equity. For example, if you fail to create a valid deed in the
creation of your legal easements, it will be seen as a contract to provide a
legal easements and, thus, given effect in equity in the same way as a pre-
conferment contract (Parker v Taswell (1858)).
⇒ Note, both of these routes MUST comply with Law of Property (Miscellaneous
Provisions) Act 1989, section 2 i.e. made by signed writing. If there is no signed
writing NO right (i.e. neither legal or equitable) has been given at all.
Equity formalities
⇒ As mentioned above, there are formalities in the creation of a legal
proprietary right in rem. However, there are also formalities in the creation of an
equitable proprietary right in rem.
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,⇒ In general, equitable interests must be created by signed writing (Law of
Property Act 1925, section 53(1)(a)).
Exception: Beneficial interests under a trust must be "manifested and proved"
by signed writing (Law of Property Act 1925, section 53(1)(b))
Exception: Imposed (i.e. implied) trusts need not be created or proved by
writing (Law of Property Act 1925, section 53(1)(b)). For
example, constructive trusts and resulting trusts.
⇒ It should be mentioned that it is not expected you understand all of this at
this stage. In fact, this is a necessarily complicated overview of some
fundamental concepts of land law, all of which will make sense as you go
through the topic notes.
*EXAM TIP*
⇒ In land law you must ask yourself two questions when deciding whether a
right is equitable:
Is the right in the list of legal interests under the Law of Property Act
1925, section 1(2)(a)? → if it is not, the right must be equitable.
If the right is in the list you must ask whether or not the right was
created by deed → if it is not, it must be equitable (which requires the
right to be created by signed writing instead).
⇒ If created by neither deed or signed writing it is neither legal or equitable.
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, Unregistered Land
Introduction
Basic introduction
⇒ Unregistered land is title is not recorded in an official register.
⇒ Registered land, on the other hand, is land to which title is registered formally on
the Land Registry.
The number of registered houses is growing, making the law on unregistered
land increasingly redundant. This is due to voluntary (Land Registration Act
2002, section 3) and compulsory (Land Registration Act 2002, section 4)
registration of title.
⇒ Title to registered land is found in the title deeds and related document held by the
estate owner (or his mortgagee).
⇒ However, title to unregistered land is founded upon unchallenged possession.
Possession
Basic introduction
⇒ Possession can be established only by a person who is both in factual possession
of the land and who intends to possess the land.
Factual possession
⇒ To demonstrate factual possession of land, the claimant must assert "complete
and exclusive physical control" over the land (Buckinghamshire CC v Moran
[1990] per Slade LJ).
In other words, the claimant must demonstrate that they (and they alone)
have been dealing with the land as an occupying owner would be expected to
deal with it.
An essential element of factual possession is control over the access of
strangers to the land and their activities on the land. See, for example, the
case of J A Pye (Oxford) Ltd v Graham (2003).
Intent to possess
⇒ For a claimant to demonstrate an intention to posses land, they must intend "to
exclude the world at large so far as is reasonably practicable" (Powell v
Macfarlane (1977) per Slade J).
This intent to possess can be inferred from the factual possession. So, in
practice, if a claimant factually possesses land it would be easy for them to
prove they intend possess the land too.
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