Summary
Summary Land law notes
- Module
- Land Law (LAW137)
- Institution
- The University Of Sheffield (TUOS)
Summary of 16 pages for the course Land Law at TUOS (Land law notes)
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Introduction to Property Law in England and Wales Property rights v personal rights
Types of property recognised in the law of England and Wales
o Personal property
Tangible
Intangible
New forms
o Real property
Key concepts in real property
o Tenure
o Estates
o Interests (legal and equitable
Property right - also known as:
Proprietary right
A ‘real’ right
A right in rem - a right directed towards property.
Translates to a right ‘in the thing itself’.
Right can be available ‘against the whole world’.
Personal right - also known as
A right in personam
A right directed towards a particular person.
Right is available against that particular person.
Property rights v personal rights
A property right can be distinguished from a personal right in that it is alienable (it can be
given away or sold), and it is enforceable against people who were not involved in creating
it.
In National Provincial Bank v Ainsworth [1965] AC 1175, Lord Wilberforce set out the ‘classic
statement’ of the distinction between property rights and personal rights: -Classic
definition of what is considered property and personal rights.
“On any division … which is to be made between property rights on the one hand, and
personal rights on the other hand, however broad or penumbral the separating band
between these two kinds of rights may be, there can be little doubt where the wife’s rights
fall. Before a right or an interest can be admitted into the category of property, or of a right
affecting property, it must be.
1) definable, -you’ve got to be able to put boundaries on it and be clear about what it
relates to.
2)identifiable by third parties, -there are risks for third parties. In dealing with properties
that belong to another-not secret.
3)capable in its nature of assumption by third parties, and have some degree of
permanence or stability-
Classification of property-refer to lecture slides.
,There’s an additional element for formality in relation to land because land is essential as it
is a source of wealth and its permanence as it is going to outlive all of us.
Different types of property
1. Personal property (interests in things)
a. Rights relating to things in possession (tangible things) -movable and because
you physically possess them
b. Rights relating to things in action-not tangible (legal rights or claims
enforceable by action). Eg software
“All personal things are either in possession or in action. The law knows no tertium quid
between the two”
Colonial Bank v Whinney (1885) 30 Ch D 261, per Fry LJ at 285
c. Digital assets - new ‘third’ category evolving under the common law
i. things that attract personal property rights that fall outside the established
categories (milk quotas, crypto assets).
ii. some case law confirming some property rights (eg AA v Persons Unknown
who demanded Bitcoin on 10th and 11th October 2019; Persons Unknown who
own/control specified Bitcoin; and Bitfinex [2019] EWHC 3556 (Comm)
iii. Law Commission has recommended legislation to create a distinct category of
personal property for digital assets - reflecting unique features and confirm as
property, Digital Assets: Final Report (Law Com No 412, 2023) paras 3.1 - 3.3)
2.Real property (interests in land)
Types of property: personal property –
(1) tangible
tangible property (choses in possession) - also known as ‘chattels’.
Moveable items that you can touch eg a bag of gold.
(2) intangible property (choses in action)
•‘all rights which can only be enforced by action, and not by taking physical possession’:
Channell J in Torkington v Magee [1902] 2 KB 427, at 430
•e.g. shares, debts, money in your bank account, intellectual property
Types of Property: land (real property)
The statutory definition of ‘land’: s. 205(1)(ix) Law of Property Act 1925
“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) …
Anything affixed to the building counts as land.
and an easement, right, privilege, or benefit in, over, or derived from land…
Terminology: tenure, easement, right
Distinguishing between land and chattels
The test is ‘degree of annexation’ to the land.
, Elitestone v Morris [1997] 1 WLR 687: a chalet bungalow was held to be real
property as it could not be moved (although it was only resting on its foundations)
without completely dismantling it.
Chelsea Yacht and Boat Co v Pope [2000] 1 WLR 1941: houseboat held to be a chattel
as it could be detached from the bank and moved.
Mew v Tristmere Ltd [2011] EWCA Civ 912: houseboats resting on wooden platforms
supported by piles driven into the harbour bed; removal by a crane likely to result in
their damage or destruction; held to be chattels as originally capable of floating and
not intended to be permanent.
Land law: Key concepts - tenure.
Tenure involves the notion of one person holding rights in land from someone with a
greater set of rights.
In technical legal terms, all property rights in land in this jurisdiction are still held from the
Crown, the ultimate owner.
Land Law: key concepts – estates.
1) The only estates in land which are capable of subsisting or of being conveyed or created
at law are—
(a) An estate in fee simple absolute in possession-freehold no end date (indefinite time)
(b) A term of years absolute-leasehold set period of time
(2) The only interests or charges in or over land which are capable of subsisting or of being
conveyed or created at law are –
(a) an easement… …
(c) a charge by way of legal mortgage
(3) All other estates interests and charges in or over land take effect as equitable interests
Law of Property Act 1925, s1
Freehold and leasehold estates
These are better known as Freehold and Leasehold.
A freehold estate lasts indefinitely (no end date)
A leasehold estate is created by the freeholder of the land ‘carving out’ a lesser right (of
limited duration) in the freeholder’s land.
Commonhold is a subspecies of Freehold, introduced by s.1, Commonhold and Leasehold
Reform Act 2002 – rarely used, but see the Law Commission’s report, ‘Reinvigorating
Commonhold’ published in 2020.
Land law in England and Wales encompasses a very important element - time.
‘An estate in land is a time in the land, or land for a time’: Walsingham’s Case (1573) 75 ER
805
Estate holders can create third party rights or ‘interests’ in their land.
Although the holder of either a freehold or leasehold estate in land is able to grant lesser
rights in their land, this is always subject to the law – the estate owner does not have a free
hand.
In Hill v Tupper (1863) 2 Hurlstone and Coltman 121, 159 E.R. 51, it was made clear that ‘A
new species of property right cannot be created at the will and pleasure of the owner of
property; but he must be content to accept the estate and the right to dispose of it subject
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