LAND LAW Text, Cases, and Materials SECOND EDITION

OUTLINE CONTENTS PART A INTRODUCTION 1 1 What’s special about land? 3 2 What is land? 27 3 Human rights and land 59 PART B THE CONTENT QUESTION 123 4 Legal estates and legal interests 125 5 Equitable interests 145 6 Direct rights 167 PART C1 THE ACQUISITION QUESTION 189 7 Formal methods of acquisition: contracts, deeds, and registration 191 8 Informal methods of acquisition: adverse possession 246 PART C2 THE ACQUISITION OF AN EQUITABLE INTEREST IN LAND 289 9 Th e doctrine of anticipation: Walsh v Lonsdale 291 10 Proprietary estoppel 303 11 Trusts: the acquisition question 357 PART D PRIORITY AND THE DEFENCES QUESTION 389 12 Th e priority triangle 391 13 Unregistered land and priorities 416 14 Registered land and priorities 443 15 Evaluating the Land Registration Act 2002 478 PART E THE SHARED HOME 519 16 Interests in the home: the acquisition question 521 17 Regulating co-ownership: the content question 568 18 Co-ownership and third parties: applications for sale 613 xii | Outline Contents 19 Co-ownership and priorities: the defences question 639 20 Successive ownership 681 PART F LICENCES AND LEASES 695 21 Licenses 697 22 Leases 749 23 Regulating leases and protecting occupiers 823 24 Leasehold covenants 847 PART G NEIGHBOURS AND NEIGHBOURHOODS 899 25 Easements 901 26 Freehold covenants 968 27 Flat ownership: long leases and commonhold 1015 PART H SECURITY RIGHTS 1037 28 Security interests in land 1039 29 Protection of the borrower 1071 30 Lender’s rights and remedies 1129 CONTENTS Table of Cases xxviii Table of Statutes xliv List of Abbreviations li PART A INTRODUCTION 1 1 WHAT’S SPECIAL ABOUT LAND? 3 1 Th e Importance of Land 3 2 Th e Scope of this Book 4 3 Th ree Underlying Questions 7 4 Th e Special Features of Land 8 5 Land Law in Practice: Occupiers v Banks 12 5.1 Th e Facts of the Case and Th e Dilemma 12 5.2 Two Possible Approaches 14 5.3 Th e Court of Appeal’s Approach in Ainsworth 15 5.4 Th e House of Lords’ Approach in Ainsworth 20 5.5 Comparing the Approaches of the Court of Appeal and the House of Lords 22 5.6 Developments aft er Ainsworth: Rights of Occupation 23 5.7 Developments aft er Ainsworth: Property Rights in the Family Home 24 6 Conclusion 25 2 WHAT IS LAND? 27 1 Land as a Form of Private Property 27 2 Th e Meaning of ‘Land’ 32 2.1 Th e Physical Reach of Land 32 2.2 What Objects does the Land Include? 40 3 HUMAN RIGHTS AND LAND 59 1 Introduction 60 2 Th e Mechanics of the Human Rights Act 1998 61 2.1 Th e Courts and the HRA 1998 61 1 2 3 xiv | Contents 2.2 Vertical Eff ect 67 2.3 Horizontal Eff ect 74 2.4 Absolute and Qualifi ed Rights 79 2.5 Th e Justifi cation Formula 79 2.6 Retrospective Application 88 3 Article 1 of the First Protocol to the ECHR 88 3.1 When is Article 1 Engaged? 90 3.2 When is an Interference Justifi ed? 94 4 Article 8: Th e Right to Respect for Private and Family Life and the Home 98 4.1 When is Article 8(1) Engaged? 99 4.2 When is an Interference Justifi ed under Article 8(2)? 102 5 Article 14: Freedom from Discrimination 115 6 Article 6(1): Th e Right to a Fair Trial 116 6.1 Civil Rights and Obligations 117 6.2 A Fair Hearing 118 7 Th e Impact of Human Rights 118 PART B THE CONTENT QUESTION 123 4 LEGAL ESTATES AND LEGAL INTERESTS 125 1 Th e Concept of a Property Right 126 2 Th e Concept of a Legal Estate in Land 130 3 Legal Estates in Land: Th e Content Question 133 3.1 Th e Content of a Legal Freehold 134 3.2 Th e Content of a Legal Lease 136 3.3 Why Only Two Legal Estates in Land? 136 4 Legal Estates in Land: Th e Acquisition Question 137 5 Th e Concept of a Legal Interest in Land 138 6 Legal Interests in Land: Th e Content Question 139 7 Legal Interests in Land: Th e Acquisition Question 142 8 Conclusion 142 5 EQUITABLE INTERESTS 145 1 Th e Concept of an Equitable Property Right 146 2 Th e Concept of an Equitable Interest in Land 148 4 5 Contents | xv 3 Rights under Trusts: Th e Content Question 149 4 Rights under Trusts: Th e Acquisition Question 152 5 Other Equitable Interests: Th e Content Question 153 5.1 A Longer List of Property Rights 153 5.2 Th e List of Equitable Interests 153 5.3 Limiting the Content of Equitable Interests 154 5.4 Equitable Interests and the Numerus Clausus Principle 156 6 Other Equitable Interests: Th e Acquisition Question 157 7 Th e Relationship between Common Law and Equity 158 6 DIRECT RIGHTS 167 1 Introduction: Th e Concept of a Direct Right 167 2 When will B Have a Direct Right Against C? 168 2.1 Where C Gives B a Direct Right by Means of a Deed 169 2.2 Where C Gives B a Direct Right by Means of a contractual Promise 170 2.3 Where C Gives B a Direct Right by Means of a Non-contractual Promise 171 2.4 Where C Commits a Tort Against B 178 2.5 Th e ‘Benefi t and Burden’ Principle 179 2.6 Where C Knows about a Pre-existing Right of B 180 3 Is B’s Direct Right a Property Right or a Personal Right? 184 4 Direct Rights and Registered Land 185 5 Conclusion 186 PART C1 THE ACQUISITION QUESTION 189 7 FORMAL METHODS OF ACQUISITION: CONTRACTS, DEEDS, AND REGISTRATION 191 1 Introduction 192 2 Formality Requirements for the Creation or Transfer of Legal Rights 194 3 Contract 195 3.1 When Does Section 2 Apply? 197 3.2 Th e Concept of an Exchange 199 3.3 Th e Requirement of a Signature 200 3.4 Th e Eff ect of Non-compliance 202 3.5 Collateral Contracts 203 6 7 xvi | Contents 3.6 Rectifi cation 206 3.7 Estoppel 209 4 Creation and Transfer 220 5 Registration of Title 224 5.1 Why Registration of Title? 225 5.2 Th e Principles of Registration of Title 227 5.3 Th e Scope of Registration 228 5.4 Th e Registration Gap 232 5.5 Outline of a Registered Title 235 5.6 Indefeasibility 235 6 Th e Future: E-conveyancing 240 6.1 Electronic Dispositions: Th e Legal Impact 242 8 INFORMAL METHODS OF ACQUISITION: ADVERSE POSSESSION 246 1 Introduction 246 2 Is Adverse Possession Justifi ed? 248 3 An Outline of the Operation of Adverse Possession 250 4 Th e Inception of Adverse Possession 251 4.1 ‘Adverse’ Possession Defi ned 253 4.2 ‘Possession’ Defi ned 256 5 Th e Eff ect of Adverse Possession 266 5.1 Unregistered Land 266 5.2 Registered Land: Land Registration Act 1925 267 5.3 Registered Land: Land Registration Act 2002 270 5.4 Human Rights and Adverse Possession 277 6 Adverse Possession and Leasehold Titles 281 7 Conclusion 285 PART C2 THE ACQUISITION OF AN EQUITABLE INTEREST IN LAND 289 9 THE DOCTRINE OF ANTICIPATION: WALSH V LONSDALE 291 1 Introduction 291 8 9 Contents | xvii 2 Walsh v Lonsdale in Context 292 3 Th e Signifi cance of Specifi c Performance 294 4 Th e Nature of the Rights Acquired 297 4.1 Enforceability of Rights against Th ird Parties 298 4.2 Th e Nature of the Trust 299 5 Conclusion 301 10 PROPRIETARY ESTOPPEL 303 1 Introduction: Th e Nature of Proprietary Estoppel 304 2 Th e Requirements of Proprietary Estoppel 311 2.1 An Assurance by A 312 2.2 Reliance by B 325 2.3 Th e Prospect of Detriment to B 329 2.4 Th e Role of Unconscionability 332 3 Th e Extent of A’s Duty to B: Remedying a Proprietary Estoppel 338 4 Th e Eff ect of Proprietary Estoppel on a Th ird Party: Priority and the Defences Question 349 4.1 Introduction 349 4.2 B’s Position aft er a Court Order in His or Her Favour 350 4.3 B’s Position before a Court Order in His or Her Favour 351 11 TRUSTS: THE ACQUISITION QUESTION 357 1 Introduction 358 2 Express Trusts 359 3 Resulting Trusts 360 3.1 Th e Purchase Money Resulting Trust 362 3.2 Th e Scope of the Purchase Money Resulting Trust 367 4 Constructive Trusts 368 4.1 Institutional and Remedial Constructive Trusts 369 4.2 Th e Doctrine in Rochefoucauld v Boustead 371 4.3 Th e Two-Party Case 372 4.4 Th e Th ree-Party Case 376 5 Th e Pallant v Morgan Constructive Trust 379 5.1 Th e Elements of the Pallant v Morgan Constructive Trust 380 5.2 Th e Nature of the Unconscionability 382 5.3 Th e Basis of the Pallant v Morgan Constructive Trust 384 6 Towards a Rationalization of Constructive Trusts 385