Land Law Revision Summary

The Nature of Land 1

Proprietary vs Personal Rights 2

Land Registration 4

Alteration and Rectification 5

Powers and Priority Rules 7

Overriding Interests 8

Protected Registerable Interests 10

Adverse Posession 11

Mortgages 13

Rights and Remedies of the Mortgagee (Lender) 14

The Rights and Remedies of the Mortgagor (Borrower) 17

Co-Ownership 21

Establishing Co-ownership 22

Express & Implied Co-Ownership 23

Resulting Trusts 24

Constructive Trusts 26

Proprietary Estoppel 27

Consequences of Co-Ownership 29

Severance 29

TOLATA 1996 30

Licences 32

Proprietary Estoppel 33

Remedies in Estoppel 35

Easements 36

Creation of Easements 38

The Effect of Easements 39

The Nature of Land

• Land (s.205(1)(ix) Law of Property Act 1925 (LPA 1925)

  • Includes physical land, buildings, fixtures (corporeal hereditaments), and rights over land (incorporeal hereditaments)

  • Includes ground below (Grigsby v Melville – cellar) and lower airspace above the ground (Bernstein v Skyviews)

  • Treasure belongs to the Crown (Treasure Act 1996)

  • Forgotten property is not abandoned property (Moffat v Kazana)

• Fixtures vs Chattels

  • Attached to the land is part of the land (Holland v Hodgson), two part test:

    • 1) Degree of Annexation – if moveable or resting on its own weight then a chattel (Culling v Tufnell)

    • 2) Purpose of Annexation – was it put there to improve the property? E.g. a wall hanging passes degree test but under purpose test it fails as only there to be looked at and enjoyed (Leigh v Taylor)

  • Chattels are goods and others not part of the land.

  • Anything that is a fixture on the date of sale or mortgage is a part of the property and cannot be sold/removed.

Proprietary vs Personal Rights

• Land users fall into one of three categories

  • A – a property/proprietary right (e.g. a lease, easement, covenant)

  • B – a personal right (e.g. they are a guest of X)

    • All this means is that they cannot be classed as a trespasser (Thomas v Sorrell).

    • Can only be binding in so far as they are in personal constructive trusts.

  • C – no right at all (e.g. a trespasser – nb one day they may become an adverse possessor and gain a property right).

    • Can be removed easily (possession order can be <24hrs).

• Purchaser for value without notice (‘T’)

  • If A’s right is proprietary, then it is capable of binding T or capable of binding the land.

    • This right is a part of the land – they affect the land potentially for ever.

  • B’s right is personal it is inherently incapable of affecting/binding T on the land.

    • King v David Allen [1916] – above principle declared.

    • Street v Mountford [1985] – Landlords tried to call as many things as possible a license in order that not too many tenants were classified under the Rent Act 1977.

      • Defined a lease (as opposed to a licence) as: a grant of exclusive possession of the property for a fixed or periodic term at a rent.

• Defining Proprietary Rights

  • Lord Wilberforce in National Provincial Bank v Ainsworth

    • Lord Wilberforce’s definition: “Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability”

  • Not enough that there is a potential property right, it must have been created with proper formality.

• Legal vs Equitible Interests

  • NB Do not think that Equitable rights are weaker - while this used to be the case it is no longer the case in modern land law. Mostly just depends on formalities.

  • Only certain things are capable of being legal (LPA 1925)

    • Freeholds (1(1)(a))

    • Leaseholds (1(1)(b))

    • Easements and Profits (1(2)(a))

    • Mortgages (1(2)(c))

  • Every other type of property right can only ever be equitable (s.1(3) LPA 1925)

    • Options (option to purchase)

    • Covenants

    • Estoppel

    • Equitable Co-ownership

• Legal Right Creations require a deed

  • A deed declares it is a deed, is signed as a deed, and is witnessed as a deed.

  • It must (generally) also be registered substantively as a deed under s.25-26 LRA 2002

  • Exceptions:

    • A legal lease for less than 7 years requires a deed but need not be registered (s.52(1) LPA 25)

    • A short legal lease (3 years or fewer) then there is no deed needed and no registration needed. (s.52 & s.54 LPA 1925)

    • Implied legal easements

    • Adverse posession

• Equitable Rights must also be created in a valid way:

  • Without registration (excluding exceptions) then the right defaults to an equitable version (s.26 LRA 2002) - this is equity mitigating the formality of the common law.

  • Either a deed (unregistered - can only ever be equitable) or written instrument can create an equitable right.

  • Oral transactions can create equitable interests in two insatnces only

    • Constructive or Resulting Trusts (Implied) (s.2(5) LPA 1989)

    • Proprietary Estoppel

• Legal vs Equitible

  • Only difference is the provisions in the statute

  • In Martin Dixon’s opinion we could abolish the distinction for all the difference it would make.

  • Except:

    • Technically an equitable right can only have equitable remedies

    • Content of a legal version of a right and a equitable version of a right are not always absolutely identical.

Land Registration

• Three principles of Land Registration (more policy goals, regularly broken)

  • The Mirror Principle – the idea that everything should be written on the register.

    • Crack in the mirror: Overriding interests cannot be registered.

      • Logistical reasons (convenience): too many short leases.

      • Socially important rights: e.g. the rights of a person in actual occupation needed more protection.

  • The Curtain Principle – linked to the idea that purchasers do not always have to be bound by every type of interest; some interests exist behind the curtain of overreaching.

    • Under LPA 1925 (s. 2 & s. 27). NB if there is only one legal owner, overreaching cannot happen.

    • Overreaching occurs when a person's equitable property right is dissolved, detached...

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