Lecture notes
Land Law Lecture Notes
- Module
- Land Law
- Institution
- The University Of Kent (UKC)
Lecture notes of 179 pages for the course Land Law at UKC (Land Law)
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Land Law 2021-22: Topics, Themes, Tips Lecture NotesLand Law
- ‘Land Law’ is: ‘The subject formed when the conceptual category of “property right” is
confined to one context: the law relating to property rights in land… The nature, creation and
protection of interests in land’ – Peter Birks
- We need to be worried about the nature creation and protection of interests in land. Which is
what is studied in land law.
How does all of this relate to what you have already studied in FOP?
- What does property mean, and why do we have it?
- Proprietary versus personal rights (lease/licence)
- Village greens, commons, trespass, use “as of right”.
- Easements (express, implied and by prescription)
- Trusts (express trusts and co-ownership)
Key Questions for Land Law
- We focus on land law doctrine relating to specific:
o Questions
o Situations (contexts),
Social/Political/Power Contexts
o Kinds of “interests in land”
(Birks: ‘nature’, ‘creation’, and ‘protection’… also known as interaction (priorities)
Protection = Concept of protection is given a hard doctrinal face through the
concept of priorities. Everyone has rights and law is structured through concepts
of judicial rights.)
- As you approach each topic/sub-topic, you should ask yourself the following things:
o What proprietary interest(s) does each party have?
o How do we know they have such interests?
o What might that interest enable them to do/stop other people from doing
, o Example
Aaliyah has no income at all, but she inherits, a big estate in Kent with two habitable
residences, valued at £3million. She is registered as the sole proprietor (RP).
Aaliyah takes out a loan of £50,000 with Big Bank to generate funds, using Xanadu
as security on the loan. Big Bank register the details on the charges register.
Aaliyah handles the loan repayments by asking her lawyer friend Christine to move
in to one of the residences and pay off the mortgage. Christine does so.
Aaliyah gets sick of living in Kent and rents out the other residence on a 4-year
lease, using the income to live in a cottage in Iceland. Christine prepares a Deed of
lease which is signed by Aaliyah and the tenant, Dwayne, but the lease is not
registered at the Land Registry.
Key Topics
- Conceptual Framing
o Peter Birks
o Carol Rose
o Course Themes
- Registration and Dealings in Land
o The nature of the system of registration and registered interests in land.
o Acquiring an interest in land, formally or informally.
o Basic Dealings in Land – Transfer of Title
(kinds of interests involved and how they might interact)
o Limits and challenges to registration.
o We take a special interest in “squatting” as a rich example of the social nature of land
law (and limits of the system of registration).
- Owner-occupation
o Issues arising out of co-ownership and co-habitation (acquiring a beneficial interest
under a constructive trust).
o Mortgages (relations between mortgagors and mortgagees, relationships between
beneficiaries and mortgagees).
Repossession
Overreaching
Overriding interests
o Sale and leaseback
(Equity Release)
- Leases (residential)
o Leases as a proprietary right
o Legal and social issues surrounding long residential leases
o Reform of leasehold
o Commonhold as a potential solution
o AirBnB
, - Freehold Covenants
o Burdening a piece of land that is “owned outright” with conditions about what
must/must not be done on or with it
o Restrictive covenants
o Positive covenants
o ‘Workarounds’ (alternative mechanisms to achieve a similar result)
o Reform
Module Themes
- Malleable and Multiple Concepts of Property.
o What we think property is as a conceptual entity is not fixed.
o Different legal systems conceptualise property in different ways and in England and
Wales the jurisdiction has conceived of property in subtly different ways throughout
history.
o We know how we conceive of property because we can see how it is defined and used
and regulated in the concrete law.
- Market Logics in Land Law.
o Idea of understanding land as a financial resource
An asset to be traded
Not as a place to live or to grow food, for example but an asset.
o How the idea of market logics has gradually taken hold within the land law in statute
and common law reasoning.
- Registration and Its Politics/Morality.
o We look at this idea of the gradual evolution and sometimes revolution through
statutory reform of the way in which we establish and prove title to land and the way
that's become more and more embedded within a system of registration.
- These Themes ideas are strictly connected.
o These different social/economic logics might influence how we conceive of property in
different ways and this takes concrete form in the black letter law.
- These are not “topics” (although you can get direct questions on them in the exam), they are
lenses through which to examine the topics outlined on the previous slides.
, Concepts of Property
- Concepts – (Not “land”, but “rights” (Interests) in Land)
o “Ownership”
Understanding property is basically a question about ownership is too blunt an
instrument.
Property rights are a bundle of potential rights and some rights allow people to do
things which owners cannot stop (E.g. Easements).
The ownership concept breaks down when confronted with the important questions
of land law which is ‘what can I stop you from doing and what can I not allow you to
stop me from doing’?
o “Bundle of rights” - Kevin Grey, Property in Thin Air.
It may be better think about the different capacities that attach to different rights.
Land can be seen as a consisting of a Bundle of Rights which correspond to diffent
uses etc that can be made of it.
It may be better to conceptualise property based on who has which rights.
o “Strands of economic potential” - Peter Birks
Different kinds of use rights divided up into capacities which might be allocated
through the legal categories.
(E.g. Leases etc)
Example Renting a House -
Renting out a Specific Room in a House
o Land is Divided spatially into different strands of Economic Potential.
Renting the Room to someone for a Specific for a Year then someone else
after
o Dividing the Land by time into different strands of economic potential.
- Property is Social
o ‘According to a deeply pragmatic approach which characterises much of the English law
of realty, the phenomenon of “property” in land is simply a product of behavioural
reality or socially constituted fact’ – Gray & Gray
We can think of property is as Locke as is something kind of like existentially, morally
real or true or correct or right OR can think of property rights as the hardest core.
(Hagel First Phase of Law is Property - The basics of who we actually are.)
But a message we keep coming back to if when trying to understand how it really
works, is whatever these hard systems are that we're producing in flux, they're in
flux historically and socially.
o Meaning of “social”?
Land law is a/the private law subject but it inevitably interfaces with other branches
of law (planning, environmental etc.).
Relations with other people (Rose).
Within doctrine we have formal/informal interests.
Encodes social power relations?
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