Land Law Notes - GDL Land Law

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

• 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.

• 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.

• 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...