REGISTRATION
Introduction
The starting point is to recognise that all land is owned by the Crown. This means that if there is no one to inherit land
when the owner dies, the land reverts back to the Crown. For the duration of his ownership, the owner of the land
would hold what is referred to as an `estate’ in the land - this refers to the legal right that the land owner has in the
land, commonly for the duration of his life.
Key fundamental concepts
1. The ownership of land
This refers to the estate that is held by the owner of the land, and is determined by the duration that the owner
would be entitled to hold the land. Land is defined in section 205(1)(ix) Law of Property Act (“LPA”) 1925 as
follows:
`Land’ includes land of any tenure, and mines and minerals, whether or not held apart from the surface,
buildings or part of buildings (whether the division is horizontal, vertical or made in any other way) and other
corporeal hereditaments, also a manor, an advowson, and the rent and other incorporeal hereditaments, and an
easement, right, privilege or benefit in, over or derived from land.
Ownership of land is simplistically divided into two types of ownership:
a. a freehold estate in the land
The tenure (duration) of a freehold estate is unlimited i.e. that it is intended to last forever. In such a
situation the freehold estate is referred to as a fee simple absolute in possession:
• fee: an estate capable of inheritance
• simple: there are no restrictions on who can inherit the land
• absolute: this signifies that there are no conditions attached to the estate
• in possession: this means that the estate is currently being enjoyed by its owner and is not an estate
that is postponed to a future date. Note `in possession’ does not necessarily mean `in occupation’.
Traditionally the concept of possession included not only physical occupation but also the receipt of
rents and profits or the right to receive the same, if any; and “income” includes rents and profits:
section 205(1)(xix) LPA 1925.
In the modern context therefore, when referring to a person holding a freehold estate or a fee simple
absolute in possession, this means that the person is in possession of an estate of an unspecified/
unlimited duration, without any conditions attached, that is capable of being inherited by anyone.
There are two other types of freehold estates:
i. Life estate: this lasts for the duration of the life of its holder and upon his death, he has no right to
pass the estate on to anyone; and
ii. Fee tail: this refers to an inheritable estate, although the right to inherit is subject to a condition,
for example to the male heirs only. This estate can also go on for an unlimited time, as long as
there are male heirs to the estate.
b. a leasehold estate in the land
The tenure of a leasehold estate is specific and the duration is set at the time the estate is acquired.
Common durations of leasehold estates are 99 years or 109 years, and it considered to be a very long
lease.
The provisions of section 1 LPA 1925 define legal estates as follows:
(1) The only estates in land which are capable of subsisting or of being conveyed or created at law (i.e. legal)
are:
(a) An estate in fee simple absolute in possession;
(b) A term of years absolute
Note: this section does not state that the estates are legal, but merely that they are capable of being legal.
Whether they are or not depends on how the estate was created or transferred.
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, In terms of creation of legal estates, the provisions of section 52(1) LPA 1925 stipulate all conveyances of land
or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.
What is a conveyance?
This is a document or instrument (excluding wills) that transfers the property from one person to another. The
document is commonly referred to as `a deed’ which is defined in section 1 Law of Property (Miscellaneous
Provisions) Act (“LPMPA”) 1989 and includes the requirements that it must clearly be identified as a `deed’ and
must be in writing, and signed by the person granting the estate or interest in the presence of witnesses (to
attest his signature), and it must be delivered as a deed (signed, sealed and delivered). Where the document is
not clearly identifiable as a `deed’, the courts will merely treat it as a legally binding document: HSBC Trust
Company (UK) Ltd v Quinn [2007].
In order to create a legal estate in the land, the requirements of section 1(1) have to be satisfied, and the
estate has to be created by deed, although there are exceptions to this rule.
In order to prove ownership of land, the owner will have to establish that he has title to the land. Before 1926,
title to property was unregistered and ownership of the legal estate could only be proven by documentation
and possession.
Today, due to a variety of legislation, title to property is required to be registered i.e. an owner is required to
enter his title to an estate in land onto a Land Register.
2. The difference between personal rights (rights in personam) and proprietary rights (rights in rem)
A right in personam is only enforceable against the person who is granted the right, whereas a right in rem is
enforceable against the whole world. There is a category of proprietary rights (rights in rem) which include
beneficial interests arising under coownership and proprietary estoppel, leases, easements, freehold covenants,
and mortgages.
3. Interests or rights or encumbrances in or over land
It is possible for individuals to concurrently have interests on a fee simple absolute in possession. Amongst the
different interests (rights in rem) include beneficial interests arising under a resulting or constructive trust,
leases, easements, freehold covenants, mortgages, estate contracts etc. These interests are considered to be of
lesser standing than the legal estate in the land.
4. The nature of legal and equitable interests or rights in land
These refer to the difference between legal (law) and equitable (equity) interests in the land. The simplest
difference between a legal interest and an equitable one is that the former arises at common law whereas the
latter arises in equity.
Another fundamental distinction between legal and equitable interests, particularly before 1926, was that legal
interests bound the purchaser of land, regardless of whether he knew about the existence of the interest.
Legal interests
In an attempt to reduce the number of legal interests in the land, section 1(2) LPA 1925 stipulates the only
interests or charges in or over land which are capable of subsisting or of being conveyed or created at law
(legal) are:
(a) An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple
absolute in possession or a term of years absolute;
(b) A rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years
absolute;
(c) A charge by way of legal mortgage;
(d) … and any other similar charge on land which is not created by an instrument;
(e) Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any
purpose, to a legal rentcharge.
Of these only (a) is examinable and note that this section does not state that the interests are legal, but merely
that they are capable of being legal. Whether they are or not depends on how they are created.
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