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Land Law Notes

GDL Law Notes > GDL Land Law Notes

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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

THE NATURE OF LAND

1 Land (s.205(1)(ix) Law of Property Act 1925 (LPA 1925)
o Includes physical land, buildings, fixtures (corporeal hereditaments), and rights over land (incorporeal hereditaments)
o Includes ground below (Grigsby v Melville - cellar) and lower airspace above the ground (Bernstein v Skyviews)
o Treasure belongs to the Crown (Treasure Act 1996)

Hugh Rowan Land Law

o 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)
o Chattels are goods and others not part of the land.
o 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

2 Land users fall into one of three categories

A - a property/proprietary right (e.g. a lease, easement,
covenant)
o 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.
o 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')
o 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.
o 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,

Hugh Rowan Land Law

3 identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability"
o 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.
o 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))
o 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.
o 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:
o 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.
o Either a deed (unregistered - can only ever be equitable) or written instrument can create an equitable right.
o 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.
o Except:
Hugh Rowan Land Law

4 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.

Hugh Rowan Land Law

LAND REGISTRATION


5 Three principles of Land Registration (more policy goals, regularly broken)
o 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.
o 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 from a piece of property, and reattached to money that is given by a third party for the property.

o The Insurance Principle - the idea that when there are mistakes there ought to be financial compensation.
Two types of registration

Substantive: title by registration: Entered on the register in order to create the legal estate or interest

Protective: title of registration: Entered in order to protect a legal estate or interest
Land cannot be double registered (technically), but the Land
Registry can make a mistake.
Title Guarantee (s.58 LRA 2002)
o Once you are registered with a title it is deemed to be yours in law and equity (i.e. absolutely) unless there is something contrary on the register.
o Swift 1st Ltd. v Chief Land Registrar [2015] - Chief Land
Registrar was arguing against the guarantee under s.58 in order to get out of paying compensation.
 Court of Appeal rejects this hands down.
o Note, English system is not a Torrens system
 Title guarantee is sometimes confused with indefeasible title (i.e. cannot be taken away). This is what exists in what is called a Torrens registration system.
o Title can be taken away in well-defined circumstances as found in the legislation itself not under the general law.
 Principles of Rectification per Schedule 4 LRA 2002.
 (a) correcting a mistake,
 (b)bringing the register up to date, or

Hugh Rowan Land Law
(c)giving effect to any estate, right or interest excepted from the effect of registration.
Walker v Burton [2013] - If I become registered with a plot of land that isn't really mine then it becomes mine.
 nemo dat rule does not apply in land.
Baxter v Mannion [2011] It is still possible to unregister land
 Manion claimed that he had a right to the land as he had squatted.
 Was proved that Manion had not squatted so the registration was undone.
Scott v Southern Pacific Mortgages (2014) - Frauds involving c.100 houses. Persons needing money sell houses and have them leased back to you. X bought the houses using mortgages from Southern Pacific. Innocent owners vs.
innocent bank - the bank won.
 Obiter Dicta of Lady Hale: we all need to remember that land registration is merely conveyancing machinery. If we think about it otherwise it is the land registration tail wagging the ownership dog.
 It is really about the underlying title.
 The problem with this is this is not was s. 58 says
- nobody follows this principle.
The tension between the idea that true ownership cannot be changed by registration and the fact that is s. 58.
 Lady Hale is now president of the supreme court were a case to go to the supreme court, all bets are off.
 In 2018 report the Law Commission considers whether we ought to retreat from hard edged title guarantee -
they said no.

o

o

o

o

ALTERATION


6 AND

RECTIFICATION

Two views:
o Narrow view of alteration: We want title by registration

Wide view of alteration: we want to be able to alter easily so that the register reflects any mistakes
LRA 2002, Sch 4(1) gives either the registrar powers to rectify the register or, alternatively, gives the court wide powers to make an order for rectification of the register.
Issue with 2016 consultation paper: it takes a position of principle that we must make the register 'indefeasible'.
o This is too strong a position.
o The word 'indefeasible' is dropped in the final 2018 draft of the paper.
Three ways to alter register

1) To bring the register up to date.
 Administrative things
 Void v Voidable transactions

Hugh Rowan Land Law
A void transaction was one that under the common law was never valid (e.g. fraud)
 A voidable transaction is one where the victim can choose for it to be valid or choose for it to be void (e.g. undue influence)
 An entry made in pursuit of a voidable transaction is not a mistake, even if the entry is then removed.
 Therefore, no indemnity triggered.
 NRAM Plc v Evans [2017] Voidable transaction - they were deleted from the register.
o 2) Mistakes
 There is a mistake where an entry has been made/not made because of a misunderstanding of the underlying facts.
 Baxter v Mannion [2011] Error is factual basis of claim (hadn't completed 10 years of adverse possession). Register was updated.
 Once there has been a mistake case law establishes that all subsequent transactions are also mistaken.
 Gold Harp v McLeod [2014] -Intending to develop the property, when tenant failed to pay rent owner closed leasehold titles on the register.
Tenant sought rectification.
o Held that the judge was entitled to not only restore an interest that was removed from the register by mistake, but also to give it priority to an interest which had been registered since the mistake.
 Rashid v Rashid [2017] - Rashid had fraudulently acquired the title to land in 1989. In 2011 original owner sought rectification.
o Held that even criminals and scoundrels were entitled to the benefit of limitation periods, and the adverse possession in the meantime was valid even if the original registration was not.
 This would not be held under indefeasible systems (Canada, Australia, New Zealand)
 Not saying that we will undo the transaction, just saying there is a mistake.
 A mistake opens up the possibility of the register changing not the certainty of the register changing.
 E.g. Walker v Burton - court recognised a mistake but did not change the register.
 Rectifications
 Is the registered proprietor in possession? Most cases end up here.
o Do not change the register unless:
 the registered proprietor consents;

7 Hugh Rowan

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