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Introduction to land law

Land law is part of property law, where property can be defined in this context as the condition of being owned by way of a legal relationship. Land is known as ‘real property’.

This section and its proceeding pages will consider the structure of modern land law, its main inconsistencies and the two methods through which land can be traded: through title deeds conveyancing and through registered title conveyancing.

Land has some special characteristics as against other types of property: it is unique; limited in supply; permanent and indestructible; connected to other land; has social importance and can sustain multiple interests. Whilst one person may ‘own’ the property by having an ‘ownership interest’, third parties might also have interests in the property: a bank may be in possession of a mortgage over the property; a neighbour might have a right of access to his garage over the property and a tenant might rent the property from the person with the ownership interest.

The ‘multiple interests’ characteristic of land is usually the source of issues within land law. There may be disputes over: the nature or content of interests; their creation, or the priority of interests. In the Landmark case of Williams and Glyn’s Bank v Boland [1981], for example, the question was whether a bank’s mortgage from a husband could take priority over the husband’s wife, who also had an interest in the house as a result of her contribution to the purchase price.

The doctrine of tenures

The concept of land law is usually traced back to 1066 and William the Conqueror’s victory in the Battle of Hastings. Having conquered Britain, it could be said that the new King owned all of the Britain. His Majesty then handed out rights to use portions of Britain to his immediate subordinates, aristocrats, in return for services. For example, one subordinate would have been given the right to use some of Britain’s farm-land in exchange for the contribution of farm produce. This right to use land was known as a tenure, and the services trade for the rights were known as incidents of tenure. The King’s subordinates then split up their land between their subordinates, and the process continued into smaller and smaller parcels of land. This created a feudal system of land, where the King owned all of the land in Britain.

In 1290, the Statute Quia Emptores prevented any further splitting up of land, or sub-infeudation, before the Doctrine of tenures has abolished by the Tenures Abolition Act 1660. Today, the Crown still owns all of the land in Britain, therefore it is technically impossible to own your own land. Instead, if you ‘own’ some land, you in fact own an estate in that land. Without any heirs, surviving relatives or a will, upon death, your estate will be returned to the Crown. This is known as the incident of Escheat, which still survives from 1066.

The doctrine of estates

Whilst a tenure denoted the terms of within which a person could occupy a parcel of land, an estate denotes the duration of ‘ownership’. There were historically many types of estates, today categorised into freehold and leasehold estates, the latter of which has a certain duration. Freehold estates have uncertain durations:

  • Fee simple estate – an inheritable estate (fee) with no limitation of who could inherit (simple)
  • Fee tail – an inheritable estate (fee) but which only descendants could inherit (tail)
  • Life estate – an estate lasting for the duration of the life of the grantor

Freehold estates could also be classified as: ‘in possession’, with an immediate right to possession; ‘in remainder’, with a future right to possession and ‘in reversion’, also with a future right to possession. Leasehold estates are subordinate to freehold estates. The owner of a freehold estate may grant a lease – a leasehold estate – to another. The owner of a freehold estate of land (the landlord) has the right to receive rent from the owner of the leasehold estate in his land (the tenant).

Ownership and possession

Where there is a dispute over the right to be in occupation of land, the courts are often faced with the question of who should be entitled to occupation of some land: the owner of an estate, or the person who has been in possession. Asher v Whitlock (1865) is a good example of this. A Lord owned the legal estate in some land, and Williamson took adverse possession of it. Williamson later died, leaving the land to his wife and descendants, on the condition that she remain unmarried. The wife remained in possession but remarried Whitlock. Both the wife and the wife’s daughter died, and the question was whether it was the daughter’s descendant or Whitlock who was entitled to occupation. The general rule is that a title to land is stronger if obtained earlier in time; therefore the daughter’s descendant was entitled to occupation due to a title which had been obtained before Whitlock’s. The Lord would have been able to override both Asher and Whitlock’s titles to the land as long as he did so within 20 years of the start of Williamson’s possession – a statutory limitation.

Equity

Equity has played a significant role in the development of land law. So far, we have only considered the common law and statutory aspects to land law. Besides legal estates in land, a person may also own an equitable estate in land.

Trusts

Historically, when fighting in the crusades, soldiers would gift their estates to trusted others, on the understanding that should they return alive, their estates would be returned. However, these trusted others, under common law, were entitled to sell on soldiers’ land for their own personal profit. The Courts of Chancery therefore developed the concept of the trust. When land was given to a trusted other, it was said that although that other then owned the legal estate in the soldier’s land, the soldier retained ownership of an equitable estate in the land. The property was said to be held on trust, with the trusted other to be known as the trustee and the soldier as both the grantor and beneficiary of the trust.

Notice

Equitable estates – estates held on trust – are not as universally enforceable as trusts. They can be defeated if the trustee were to sell the legal estate in the property to a bona fide purchaser for valuable consideration if that purchaser has no notice of the trust. The previous statement describes the doctrine of notice. According to Pilcher v Rawlings (1872), if a purchaser of a legal estate satisfies all of the requirements of the doctrine of notice, he need not be concerned with any equitable estate in the land he is purchasing. There are 4 elements to the doctrine of notice: good faith, valuable consideration, a legal estate and a lack of notice.

Good faith, according to Lord Wilberforce in Midland Bank Trust Co v Green [1981] describes the discretionary nature of equitable remedies: it is up to the court to decide whether a purchase did indeed override the equitable interest in question.

Valuable consideration must be paid by a purchaser for him to be considered as a bona fide purchaser. Consideration must be voluntary and substantial, it may not be nominal.

Only the purchaser of a legal estate may be classed as a bona fide purchaser. These purchasers may be owners, lessees or mortgagees of a legal estate.

A bona fide purchaser will override any interests which he did not have notice of. There are three types of notice: actual notice, implied notice and constructive notice. A purchaser will have actual notice of any interest if it was specifically brought to his attention. Imputed notice is effective between a purchaser and his agent. If a purchaser’s solicitor has notice of an interest, notice will be imputed from that solicitor to the purchaser, according to Kingsnorth Finance v Tizard [1986]. Imputed notice is only effective in the context of a particular transaction. If in the course of a transaction for another client a solicitor obtains notice of an interest which will affect the purchaser, notice will not be imputed according to Section 119(1)(ii)(b) of the Law of Property Act (LPA) 1925, discussed below. A purchaser will have constructive notice of an interest if that interest would have come to the notice as a result of the enquiries which a reasonable and prudent purchaser would have made in the circumstances. Reasonable enquiries will include inspecting deeds from at least 15 years ago and inspecting the land to be purchased. The requirement to inspect deeds stems from s 44(1) LPA 1925, as modified by s23 LPA 1969. As the deeds had been inadequately inspected in Re Nisbet and Potts Contract (1906), an interest was not overridden. A duty to inspect land should usually lead to the discovery of potentially binding interests. This duty will include asking occupants if they are tenants, according to Hunt v Luck (1902). In Caunce v Caunce (1969), it was said that a wife’s interests could be ignored as a mere shadow of her husband, however this has since been reversed by Kingsnorth Finance v Tizard [1986].

If a bona fide purchaser of a legal estate for valuable consideration in good faith purchases land without notice of a particular interest, equity will usually prevent that interest concerning the purchaser. Such interests of no notice will be destroyed by the purchase, and, subject to the caveat of fraud, will not be able to be revived, according to Wilkes v Spooner (1911).

Property legislation

Mentions have already been made of the Law of Property Act (LPA) 1925. Just prior to 1925, it was resolved that the land law would be overhauled. The Law of Property Act was one of many statutes of the time. It was the objective of the collective 1925 legislation to simplify a number of aspects of conveyancing (the process of trading land): alienability (excluding others), investigation (of interests) and third party rights (or interests).

The most significant chance made by the LPA 1925 was the narrowing-down of the number of legal estates which may exist. Section 1(1) provides that there will now only be two types of legal estate: the fee simple absolute in possession (an indeterminable and inheritable freehold estate) and the term of years absolute (a lease). Section 1(2) goes further and limits the number of legal interests which can exist to 5: easements, rentcharges, mortgages, similar charges and rights of entry over leasehold estates. All over estates or interests are now classed as equitable, and so are not universally enforceable.

The LPA 1925 also prevented the fragmentation of the fee simple estate, making it the basis of all modern conveyancing and provided for the doctrine of overreaching – providing that where a bona fide purchaser purchases land held on trust, the beneficiaries under that trust are entitled to a lifetime interest in the purchase value.

Finally, the LPA 1925 aims to help facilitate the protection of interests for properties both subject to registered title conveyancing and title deeds conveyancing, providing for the registration of some interests.

The 1925 legislation and its subsequent amendments will be considered in more detail through the next two pages.

Next: Title deeds conveyancing

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