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UO Martin Dixon: Modern Land Law Chapter 1 Notes
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Dixon Chapter 1 Notes: The substance of land law is still governed by the structure established by the Law of
Property Act 1925 (LPA)
o The most significant legislative development in recent times was the enactment
of the Land Registration Act 2002 (LRA 2002) – came into force on 13 October
2003 and replaced entirely the Land Registration Act 1925 – new era for the law
of real property
LRA 2002 was the product of consultation by the Law Commission in conjunction with
HM Land Registry – reforms designed to provide an efficient, clear, reliable and modern
mechanism for the regulation of land of registered title
o LRA 2002 introduced e-conveyancing but this has not yet taken place and looks
unlikely to be implemented in full.
The ‘law of real property’ (or land law) is concerned with land, rights in or over land, and
the processes whereby those rights and interests are created and transferred.
o Legal definition of ‘land’ in LPA 125, s205(1)(ix) is:
‘Land includes land of any tenure, and mines and minerals… buildings or
parts of buildings and other corporeal hereditaments: also, a manor, an
advowson, and a rent and other incorporeal hereditaments, and an
easement right, privilege, or benefit in, over, or derived from land’.
‘land of any tenure’ refers to freeholds and leaseholds
‘incorporeal hereditaments’ refers to easements etc.
o This definition seeks to convey that land includes not only
tangible, physical property but also intangible rights in the
land, the creation of a ‘charge’ on land to secure debt
(mortgage) etc.
o Consequently, land law is the study of the creation,
transfer, operation and termination of these rights and the
manner they affect the use and enjoyment of the physical
asset.
Whether parties are bound by a ‘mere’ contract or the formal ‘deed of grant’, they may
enforce the contract or deed against each other
The special thing about ‘real property rights’, whether created by contract, grant or some
other method, is that they are capable of affecting other people, not just the parties that
originally created the right.
o Land law rights can be attached to the land itself so anyone who comes into
ownership or possession of the land can enjoy the benefits or may be subject to
the burdens imposed on the land proprietary nature of rights and interests in
land, very different from ‘personal’ obligations that a normal contractual
relationship establishes.
The categories of proprietary right must be defined with some care, and their creation
must be established with a large measure of certainty, because not every right that has
something to do with land can be proprietary.
Traditional starting point in a search for the ‘proprietary’ character of rights is the a priori
definition of ‘an interest in land’ put forward by the HoL in National Provincial Bank v
Ainsworth essential point was whether a wife’s right to live in the former matrimonial
home could be regarded as a proprietary right given, she didn’t own a share.
, o If it could, right might bind a 3rd party such as the bank, which had a mortgage
over the land and whose claim to possession might be defeated if a proprietary
right existed.
If the right was purely personal, then it could never bind the land and the
bank’s mortgage would take priority and they could take the house.
HoL decided that her right was only personal Lord Wilberforce:
‘before a right or interest can be in the category of property, or of
a right affecting property, it must be definable, identifiable by 3rd
parties, capable in nature of assumption by 3rd parties, and have
some degree of permanence.
o Rights to land must satisfy this 4-stage test before being
regarded as ‘proprietary’.
This definition is subject to criticism as the words
used are open-ended, the definition is circular.
The definition tells us that proprietary rights have a
certain quality other than merely being connected
with the use or enjoyment of land and it is this
quality that makes them fit to endure beyond
changes in the ownership or occupation of the land.
1.2 Types of Proprietary Right:
PR’s fall into 2 categories generally: estates in land and interests in land
Estates in land:
The ‘doctrine of estates’ forms a cornerstone of land law – theoretically all land in
England is owned by the Crown and all other persons may own ‘merely’ an ‘estate in the
land’, rather than the land itself.
o An estate confers a right to use and control land, being tantamount to ownership,
but with the important difference that the type of estate that is owned will define
the time for which the use and control of the land is to last – an estate in land is
equivalent to ownership of the land for a ‘slice of time’.
Freehold estates (the fee simple):
o When people say they own their land, usually they mean that they own this
estate in the land: ‘the fee simple absolute in possession’, usually referred to as
the freehold estate.
Freehold estate comprises the right to use and enjoy the land for the
duration of the life of the grantee and that of their heirs and successors.
FE is freely transferrable (‘alienable’) during the life of the estate
owner i.e., by gift or sale, or on their death i.e., by will, and each
estate owner is then entitled to enjoy the land for the duration of
their life and that of their heirs.
o Thus, the freehold is equivalent to permanent ownership
of the land by the owner of the estate, the ownership of
the Crown is irrelevant in practice.
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