First Class Land Law Complete Notes detailing: What is ‘Land Law’?; What is ‘Land’ – Airspace and Treasur; Fixtures and Chattels; Unregistered Land 37; Registered Land – What is Registration?, Structure and Mechanics of the LRA 2002 and Overriding Interests – Actual Occupation; Leases...
Land Law Notes
Lecture 1: What is ‘Land Law’? Thematic Overview..................................................................1
Lecture 2: What is ‘Land’ – Airspace and Treasure....................................................................9
Lecture 3: Fixtures and Chattels...............................................................................................20
Lecture 4: Unregistered Land...................................................................................................30
Lecture 6: Registered Land – What is Registration?................................................................49
Lecture 7: Registered Land: Structure and Mechanics of the LRA 2002..................................54
Lecture 8: Registered Land: Overriding Interests – Actual Occupation...................................65
Lecture 9: [ADDITIONAL LECTURE!] Leases and Licenses........................................................77
Lecture 10: Adverse Possession 1..........................................................................................101
Lecture 11: Adverse Possession 2..........................................................................................110
Lectures 12 and 13: Co-ownership.........................................................................................119
Lectures 14 and 15: Proprietary Estoppel..............................................................................134
Lectures 16 and 17: Easements..............................................................................................149
Lectures 18 and 19: Mortgages..............................................................................................165
*textbook available online on law trove
Lecture 1: What is ‘Land Law’? Thematic Overview
1. LEARNING OBJECTIVES (SLIDE 2)
(1) To understand the nature and scope of ‘Land Law’
(2) To understand the key, foundational themes and concepts that run through the module
2. READING
Essential Textbook Reading
Bevan, Land Law (3rd Edn, 2022), Chapter 1
Other Essential Reading
P. Birks, ‘Before We Begin: Five Keys to Land Law’ in Bright and Dewar (eds.) Land Law: Themes and Perspectives
(Oxford: OUP, 1998) – PDF on the Land Law Ultra page
Further (Optional) Reading
K. Gray and S. Gray, ‘The Idea of Property Law’ in Bright and Dewar (eds.) Land Law: Themes and Perspectives (Oxford:
OUP, 1998) – PDF on the Land Law Ultra page
E. Cooke, Land Law (Oxford: OUP, 2012), Chapter 1 – available online via library pages
, D. Cowan, L. Fox O’Mahony and N. Cobbe, Great Debates in Land Law (London: Palgrave, 2016), Chapters 1 & 2 –
physical copies in Bill Bryson
3. WHAT IS ‘LAND LAW’? (SLIDES 3 TO 7)
What is ‘land law’? At its most fundamental, ‘land law’ describes the legal framework governing the use and
enjoyment of land.
Best starting point? Read P. Birks, ‘Before We Begin: Five Keys to Land Law’ in Bright and Dewar (eds.) Land
Law: Themes and Perspectives (Oxford: OUP, 1998) – PDF on the Land Law Ultra page
Birks tells us:
‘Land law’ is not simply a subject matter, like cats e.g., ‘cat law’ would be all the law in force relating to cats.
Land law is more than mere subject matter, it’s about relationships, people, power, dreams etc.
Nor is land law merely a legal category, like ‘property rights’ - there can be property rights in very many things
besides land: in objects, for example.
Instead, Birks explains land law is: ‘the subset formed when the conceptual category of ‘property right’ is
confined to one context: the law relating to property rights in land’.
Land law is therefore about: the nature, creation and protection of interests in land.
Birks identifies 5 keys: duality, reality, formality, space and time operating with one pervasive theme:
facilitation of people’s wishes, desires in dealings with land.
We will explore in our next lecture precisely what we mean by ‘land’
Gray & Gray define land law as, ‘that part of the general law which governs the allocation of rights and
responsibilities in relation to ‘real’ or ‘immoveable’ property.’ (K. Gray and S. F. Gray, Elements of Land Law
(5th Edn, Oxford, OUP, 2009).
This definition tells us two things about land law: (1) it is about legal relationships between people; (2) it is
about those relationships that concern ‘real property.’
Key point: Land law is the law relating to ‘real’ as opposed to ‘personal’ property
Here, we encounter a vital distinction: ‘real property’ also known as ‘realty’ vs ‘personal property’ also known as
‘personalty’
‘Realty’ means property that is land,
‘Personalty’ means other types of property
Personal v Proprietary Claims:
Most claims are personal claims (e.g. claims for damages)
Proprietary claims are claims to recover a certain thing (as opposed to the thing’s monetary value). It isn’t
restricted to a particular part of an agreement e.g. given land to someone else despite agreement, could still
claim the land – claiming this certain thing is yours. -you claim is with the thing not the person.
Birks explains the distinction:
,If a lay person hears ‘real property’ or ‘real estate’ or ‘realty’, what will come to mind will be an image of land. For
most lawyers the effect will be the same . . . ‘Personal property’ or ‘personalty’ similarly evoke cars, cows,
televisions, crockery, pictures, money and a host of other moveable things . . . A judgment in money can be called
personal because it gives the victorious claimant no right in or to any particular thing but merely a right that a
person, the defeated defendant, pay the sum in question . . . in some actions, you could recover the thing itself.
Those actions came to be called ‘real actions’, ‘real’ meaning ‘thing-related’ in the simplest sense that the person
claiming would recover the very thing claimed. The subject matter of real actions then became real property.
So, land law is the law of real property. The word ‘real’ in ‘real property’ indicates that we are concerned
with rights in rem, which is Latin for rights in the thing. The real/personal distinction is ancient and
historically described the nature of the remedy available when legal proceedings were brought: an action in
rem, involved seeking recovery (i.e. return) of the land, for example, where the true owner had been
dispossessed. In contrast, an action in personam consisted of an action against a wrongdoer personally, and
for which the remedy would be compensation in the form of damages.
Land law is about rights in things; in other words, rights in the land rather than rights which are merely
personal to the people who created them/rights in land, not rights that are personal to the person who
created them. But land law is also about responsibilities and also, crucially, about relationships. Land does
not exist in a vacuum and land law must also be regarded as the body of law governing the relationship
between the thing and the owner of that thing.
Land law is concerned with the nature, creation, and protection of rights in land and, also the content of
those rights. If you rent a flat, what rights do you have? If the land is sold without your consent, what
remedies do you have? How can you protect your position?
As Birks explains:
‘[T]his core of land law has the task of providing the structure within which people and business can safely
acquire and exploit land for daily use, to live and to work. To discharge that function, it has to have its own
conceptual apparatus. The proper content of this fifth unit thus becomes the nature, creation and
protection of interests in land. Those interests and their implications are the conceptual apparatus of our
land law.’
Often several interests exist in respect of the same parcel of land at the same time. For example, there
may be a lease and a mortgage over the same piece of land. It is land law’s task to explain how these
relationships co-exist and to resolve disputes when these relationships conflict. Land law has to provide a
framework to resolve ‘the priority question’ i.e. the relative priorities enjoyed by two or more interests
operating over the same piece of land/how these relationships co-exist?
o If the landowner defaults on the loan, will the mortgagee be able to take possession of the land
and sell it at the expense of the tenant?
o If land is for sale, how can the landowner prove that she
owns the land? The purchaser will require such proof
(nemo dat quod non habet)
o If the landowner sells the land, will the purchaser be
bound by the lease and the mortgage?
4. WHAT ARE THE FOUNDATIONAL CONCEPTS AND RECURRING
THEMES IN THIS MODULE? (Slide 8)
, There are a number of foundational building blocks to land law that you need to grasp if you are to understand
and succeed in the subject. Here, we explore 5. These are, concepts and themes which run like arteries through
the course and to which we will return again and again. It is vital you appreciate these at the outset:
THEME 1: Land’s special status; justifying the need for distinct rules (land law) to govern it (slide 9)
Why is land special? Land is: permanent; in limited supply; connected; unique; socially and economically
important; and capable of supporting multiple interests.
THEME 2: The personal/proprietary divide (slide 10)
What really sets rights in land apart from, say, rights arising under a contract, is that they are proprietary in
nature as opposed to being merely personal to the parties.
Why does this distinction matter? The key point is this: proprietary rights are capable of binding, in other
words, being enforceable against third parties whereas personal rights bind only the parties that created the
rights. It is this proprietary character which gives interests in land their potency.
o A four-stage test for proprietary status (National Provincial Bank v Ainsworth (1965) the right must
be:
Definable
Identifiable by third parties
Capable of assumption by third parties
Have some degree of permanence or stability
Compare the rights arising under a licence (which gives rise to personal rights) and those under a lease (which
gives rise to proprietary rights).
The divide between personal/proprietary is therefore a vital one – but when will a right be personal and
when proprietary? Lord Wilberforce in National Provincial Bank v Ainsworth (1965) established a 4-step
test for proprietary status. To be proprietary, the right must:
(1) be definable;
(2) be identifiable by third parties;
(3) be capable in its nature of assumption by third parties,
(4) and have some degree of permanence or stability.
A helpful test?
THEME 3: Understanding tenure, estates and interests (slides 11-16)
Land law in this country is a product of its history and, in particular, its feudal past. Understanding a little of
the history allows us to appreciate and critique the modern law.
Tenure
In 1066, William the Conqueror defeated King Harold to become first Norman king of England. Post-1066, there
were significant land reforms which meant that all land was owned by the King. The King’s subjects only enjoyed
rights in land as tenants of the monarch and, in return, provided services. The terms on which rights in land were
enjoyed or ‘held’ was called tenure from the French verb ‘tenir’ meaning ‘to hold.’ There were a number of forms
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