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Summary Land Law
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Notes and Summary on Land Law
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Voorbeeld van de inhoud
INTRODUCTION TO LAND LAW– What is land?
S.205(1)(ix) Law of Property Act 1925 – land law meaning is defined here which includes things
of any tenure and mines and minerals found underneath the land, buildings on the land or parts of
the building and rights over land such as easement as well as some armchair rights derived from
the feudal system such as advowson (present a clergyman to alviign who was classes as real
property.
What is land? ‘cuius est solum eius est usque ad coelum et ad inferos (‘the person who owns the
land owns everything reaching up to the very heavens and down to the depths of the earth’).
Problems with this definition = air travel, sky. Lord Wilberforce criticises this and says it was “so
sweeping, unscientific and unpractical that it is unlikely to appeal to the common law mind”
Land provides the physical base for all human activity’ – Lord Bingham
Divide all the land in the world amongst all the people in the world we would have 100 metres of
land each.
Land Registration Act 2002
Land law is that law which attempts to describe our relationship with land
– What is property?
Property = Ownership (involves a persons’ relationship to a particular thing – “aggregate of legal
relations” existing between a person or a particular item) & factual statement (identify a particular
thing). Limitations on ownership of property= state has the power to confiscate a persons’
property; property can be transferred form one person to another without the consent of the
former e.g. power to reallocate property on divorce. This means that the English law has placed a
great emphasis on the recognition and enforcements of property rights but they are not absolute
and unassailable.
– Estates in Land:
All land is owned by the crown, so the most we can have is estates in the land (known as the
owner of the land who can use and control the land).
EiL must be created by deed except in the case of leases for up to 3 years. (s.54(2) LPA 1925).
S1(1) LPA 1925: the only estate in land which are capable of subsisting or of being created or
conveyed at law are: an estate in fee simple absolute in possession (legal freehold estate); a term
of years absolute (legal leasehold estate).
– Interests in land: (right which one has over another land)
Legal interests:
S.1(1) LPA1925 = estate in fee simple absolute in possession OR a term of years absolute.
S.1(2) LPA 1925 – only these can be legal. All the interests that are not in this list are equitable.
An easement (gives the right to use the land of another in some way, or to prevent it from being
used for certain purposes e.g. rights of way and rights of water and light); right or privilege in or
over land for an interest equivalent to an estate in fee simple absolute in possession or a term of
years’ absolute. Both easement & profits a prendre. For this right to be legal, it must be held
either for an indefinite term (equivalent to a fee simple) or for a definite time (equivalent to a
term of years – an easement for life, or a right of drainage granted until the road is adopted by
the local authority cannot be a legal interest and must be equitable.
A rent charge in possession issuing out of or charged on land being either perpetual or for a
term of years’ absolute. A rentcharge gives the owner the right to a periodical sum of money
secured on land independently of any lease or mortgage e.g. where the seller of land reserves an
annual payment for it secured by a rentcharge.
A charge by way of legal mortgage (charge on land to secure a debt).
, Land tax, tithe rentcharge, and any other similar charge on land which is not created by an
instrument. These are periodical payments with which land was burdened by law.
Right of entry exercisable over or in respect of a legal term of years’ absolute, or annexed, for
any purpose, to a legal rentcharge – right of re-entry in a lease e.g. if the tenant fails to pay the
rent, is made an interest in land in itself. Can be attached to a legal rentcharge to secure
payment of the rent.
Once the interest is one of these stated above, then a deed must be created for it to be legal. S52(1)
LPA 1925 – requires the use of a deed to create or convey a legal estate or interest in land. A deed is a
document (goes beyond a mere written contract) which, if made before 31 July 1990, had to be sealed
but this is no longer necessary. S1(2) and (3) Law of Property (Miscellaneous Provisions) Act 1989-
an instrument shall not be a deed unless it makes clear that it is intended to be a deed; it is signed by
the person executing it and by a witness present at the same time who also signs it and it is delivered
by the person executing it or by someone on his behalf.
Equitable interests: right originally only recognised by the Court of Chancery (deal with equitable
rights) and not by the Courts of Common Law.
Equitable if it is not in the list of legal interests, not been created by a deed and not registered
as stated by LRA 2002 – require the following: all potential legal freeholds must be registered
as a title; all potential elgal leaseholds of over 7 years duration must be registered as a title; all
potential mortgages must be registered against the title of the freehold or leasehold that they
affect; all potential expressly created legal easements must be registered against the title of
the freehold or leasehold land they affect, if so created on or after 13 October 2013.
Common feature about both interests is that they are proprietary rights in land (capable of binding
third parties). Whilst personal rights = don’t bind third parties e.g. licenses.
Interests under Trust: when property is held by one person (trustee – legal interest) on trust for another
(beneficiary – equitable interest).
Can occur when one party (Y) paying part of the purchase price of property which is actually held in
X’s name – equity is implying a trust in favour of Y.
Interests not created formally: if a contract has been created for an interest in the land then equity
may, at its discretion, enforce it by a decree of specific performance or restrain its breach by an
injunction. “Equity looks on that as done which ought to be done” which means that when a deed is
required to create an estate or interest in land and there is not deed, equity may still regard the interest
subsisting in land as an equitable interest.
S2 Law of Property (Miscellaneous Provisions) Act 1989- S2(1) provides that contracts for the sale or
other dispositions of an interest in land made on or after 27 September 1989 must be in writing;
contain all the terms agreed by the parties and be signed by all the parties. If an agreement doesn’t
satisfy these requirements then it still may be enforceable under the principles of proprietary estoppel.
Restrictive covenants – person covenants in a deed not to use is land in a certain way or to do
something on his land e.g. to keep fences in repair or not to build on the land. Only been enforced in
equity.
Overreaching: process by which equitable rights that exist under a trust of land are removed from the
land and are transferred to the money called the capital money that has been paid to purchase the land.
The effect is to give the purchaser automatic priority or equitable interests over a trust. This can only
take place if the transaction is made by at least two trustees or trust corporation
5 dimensions of land – 1 = land itself.
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