Principles Of Land Law - GDL Land Law

_______________________________________________________

Personal & Property Rights

Estates in Land

Technically all land is owned by the Crown and the doctrine of tenure means that people don’t own land, but own estates in land:

• In possession

• In remainder

• In reversion

Personal rights = pertaining to the person – extinguishes upon death

• Licences (contractual or gratuitous)

Property rights = pertaining to the physical place - runs with the land

• Estates

  • Freehold – freeholder’s life & life of heirs - fee simple absolute in possession

    • Commonhold (novel) = freehold units in a commonhold community

  • Leasehold estates: create relationship of landlord and tenant

    • Tenant/lessee/grantee of lease = exclusive possession

    • Sublease/underlease

    • For a clear term or periodic – in all cases certain – ‘time’ defined in advance

• Proprietary interests

  • Mortgages

  • Easements

  • Covenants (obligation to do or not to do something)

  • Options to purchase

  • Equitable shares of ownership (co-ownership rights)

  • Equity by estoppel (S.116 LRA 2002)

• Trespasser = no rights over the land

Tenancy at will – often follow on from an expired lease. Undetermined status (not protected by LTA 1954 so would appear to be more like a licence; however it might also be a grant of exclusive possession for a term at a rent which may be enough to give the occupier a protected tenancy)

Non-proprietary leases?

Bruton v London & Quadrant Housing Trust

Trust was granting a licence to use properties as temp. homeless accom on a weekly rental basis. C claimed he was a tenant as he wanted to enforce a covenant

Held: (HL) the grant of exclusive possession created a tenancy; though statute differentiated between different types of landlrods, it could not change the character of the property interest

Kay v Lambeth Council

Informal agreement with housing trust ‘short life’ licence. Upon the Bruton decision, Lambeth terminated the now ‘tenancy’. Kay claimed to have become a tenant of Lambeth on termination of the lease.

Held: valid non-proprietary tenancy, but it would not bind the owner of the estate

• Dixon “slight of hand” to afford would-be contractual licensee certain rights of tenants

National Provincial Bank v Ainsworth

• Lord Upjohn “I am of the opinion that the rights of husband and wife must be regarded as purely personal…the wife is asserting rights over the land of another and in respect of which she has no beneficial ownership”

• Lord Wilberforce “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”

Scott v Southern Pacific Mortgages

Held: (SC) the claimant’s rights (Mrs Scott) were merely personal, because the person she contracted with had no interest in the land at the time of the contract – hence they could not bind the bank (Southern Pacific)

Defining Land

S.205(1)(ix) LPA 1925

• “land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings and parts of buildings (whether division is horizontal, vertical or made in any way) and other corporeal hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or any benefit in, over, or derived from land.”

Land is three-dimensional

Kelsen v Imperial Tobacco: land includes lower airspace

Bernstein v Skyviews: lower airspace is that which is necessary for the ordinary use and enjoyment of land.

• Griffiths J “balance the rights of the owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space”

Anchor Brewhouse Developments v. Berkley House

• Scott J “If an adjoining owner places a structure on his (the adjoining owner's) land that overhangs his neighbour's land, he thereby takes into possession air space to which his neighbour is entitled. That, in my judgment, is trespass”.”

Wollerton and Wilson v. Richard Costain

• Stamp J if trespass does not cause harm it will still be actionable – if an injunction is refused & nominal damages awarded then it only amounts to a licence to commit the tort for nominal consideration

...