Lecture notes
Lecture notes property law
- Module
- Property law
- Institution
- Birkbeck, University Of London (BBK)
these notes will help fellow students to understand property law in dept with all the case law related to the subject
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PROPERTY LAWCHAPTER 1
One does not own the land, just owns a title in the land.
There are 2 types of titles which are as follows:
1) Fee Simple (Own title forever)
2) Leasehold (Ownership for a certain period of time)
If land is Fee Simple owner can give rights to a 3rd Party. There are two types of rights which
are as follows:
1) Personal: Contract law rights, related to the person, not the land.
2) Proprietary: Related to the land and not the person. Owner of the land can change but it
will not impact the individual leasing the land. These rights cannot be taken away.
There are five kinds of proprietary rights which are as follows:
a) Lease and Sub – Lease: The Fee Simple is the owner can lease the land to others
B) Easement: Right to use (Lift, Parking in an apartment complex)
c) Mortgage: Buy house etc. through the bank, keep paying the bank. If one does not pay
the bank, they can kick you out. If the owner dies the new one also has to pay.
d) Option: Right to buy, right of first refusal.
e) Equitable ownership rights: Trust ownership, legal and equitable (Trustee and all)
Coownership: Wherever two or more people jointly purchase a title, an automatic trust is
created where the legal owner becomes the trustee of the land and holds the land in trust
for the equitable owners (if there is a trust deed, then the equitable owners will be specified
therein, if no trust deed, then the legal owners will themselves become the equitable
owners) (This structure applies after enactment of the Law of Property Act 1925).
There are two types of Coownership which are as follows:
1) Joint-Tenancy: Where there are no divisible shares in property, there Is 100% joint
ownership, the four unities of time, title, interest and possession apply and the right of
survivorship also applies i.e.: If a JT dies, his right in the land automatically transfers to the
surviving JT’S and does not go in his will.
2) Tenancy in common: Where there are distinct and divisible shares, only the unity of
possession needs to be present and the right of survivorship does not apply.
, After Law of Property Act 1925, the legal title can only be held as a joint-tenancy, with a
maximum of 4 legal owners. Whereas the equitable title can either be a JT or a TIC, but that
discretion has to be exercised in a trust deed, if no trust deed, the maxim “equity follows
the law” applies and the equitable title will also be a JT. (Stack v Dowden)
A trust deed is conclusive and cannot be challenged unless fraud. (Goodman v Gallant)
Dispute of Sale: Dispute between legal owners or dispute between legal and equitable
owners is different.
Dispute between Co-owners: A person can apply under Section 14 of the trust of land and
appointment of trustee’s act, to the court for either ordering a sale or to stop a sale. The
courts will look at the guidelines under Section 15 of TOLATA which is a non-exhaustive list
and includes the following:
1) Intention and purpose of creation of trust.
2) Rights of minors.
3) Rights of secured creditors.
TOLATA also abolishes the doctrine of conversion i.e.: before 1996 the assumption was that
of a trust of sale (courts leaned towards sale) but now the presumption is trust of land and
courts lean towards retention.
Chun Ho: Couple went to UK, wife had to study, got an apartment. Broke up, one asked for
sale, other did not. Education was not complete. Sale postponed till education completed.
Betson v Betson: If land bought for business and business finishes, sale will be ordered.
Dispute between Co-owners and secured creditors: The secured creditor will apply under
Section 14 TOLATA for order of sale, the courts will look at the guidelines under Section 15
TOLATA, however for policy reasons the courts generally favor secured creditors as it is
unfair to leave them out of their money (Achampong) (Pritchard) (Fred Perry), however the
courts held in Mortgage Corp v Shaire that since the doctrine of conversion has been
abolished, there can be circumstances where the courts may postpone sale. This was seen
when there was an interplay between the rights of minors and creditors, in Bank of Ireland v
Bell sale was ordered as the minor was almost of age and the quantum of mortgage was
large whereas in Edwards TSB sale was postponed as the minor and the mortgage were
small.
Bankruptcy: If a Co-owner becomes bankrupt, then he moves out of the ownership and a
trustee in bankruptcy steps in his shoes, the TIB applies under Section 14 of TOLATA for sale
and the courts look at the guidelines of Section 335A of the Insolvency Act which is wider
than Section 15 and includes rights of spouse or cohabitees conduct, conduct of spouse
towards bankruptcy etc. However, as a general rule sale can only be postponed for one year
beyond which proof of exceptional circumstances is required which have not been defined
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