Land: Property Rights, Ownership and Estates & the Numerus Clausus

Pennistone Holdings Ltd v Rock Ferry Waterfront Trust 2021

Q is whether Rock Ferry is entitled to possession of the former Vestor Oil Site, which Pennistone is claiming to be in actual occupation of, and that it’s registered as sole proprietor of the land, and an order directing the Land Registry to alter the register so as to give effect to this, on the footing that it required to be updated

Shows that freeholds are not forever, but for an uncertain period of time

Land is held from the Crown. Escheat - one of the last relics of feudal law, based on 2 propositions: a) that all land in Eng is held of the Crown (this is the principle of tenure; if the granted interest comes to an end, the land reverts to the Crown) and b) no land can be without an owner.

An escheat means freehold interests are terminated, but not derivative interests. Here, an equitable interest was seen as such a derivative interest

National Provincial Bank v Ainsworth 1965 - on interests and the idea of ownership

Wilberforce - the wife had no right against her husband to be provided with any particular house or to remain in one. She had a right to cohabitation and support, the right is personal

Before a right or interest can come into property law ‘it must be definable, identifiable by TPs, capable in its nature of assumption by TPs, and have some degree of permanence or stability’

Keppell v Bailey - facts & property rights

Certain landowners and owners of ironworks formed a joint stocks company, and constructed a railroad connecting a quarry with the several ironworks. In the partnership deed of the railroad company, the lessees of the Beaufort Works (Kendalls) covenanted for themselves (& their heirs), so long as their covenantors or assigns should occupy BW, to procure all limestone used in the works from the Trevil Quarry, and to convey it all on the railroad, paying 5d per ton per mile. The shareholders of the railroad filed a bill to enforce the covenant against a person, Bailey, who had purchased BW with notice of the partnership deed. Bailey was trying to use limestone from a diff quarry, Keppell (and other stakeholders) sought an injunction to stop this. Keppell argued i) that the promise made by the Kendalls bound not only them but also any later owners of the ironworks (concerns numerus clausus), ii) that even if the promise by the Kendalls didn’t create a property right, it should bind B because they acquired the ironworks knowing of the earlier promise

HC - the covenant didn’t run with the land so as to bind assignees at law, and equity wouldn’t, by holding the conscience of the purchaser to be affected by the notice, give the covenant a more extensive operation than the law allowed it

Copeland v Greenhalf 1952

C owned an orchard and house. Access to the orchard was by a strip of land. D had premises opposite. C brought an action against D to stop him from putting & leaving vehicles on the strip of land. D claimed a right to do so. D’s claim was that for 50 years he & his father had, with the knowledge of C and her predecessor, continuously parked customers’ vehicles waiting to be fixed/collected on the strip, except for space left to access the orchard

HC - granted C the injunction. The right claimed is outside of any normal idea of easement. [The claim was trying to get on the ownership spectrum under an easement, as it was such an extensive benefit]

Upjohn J - practically, D is claiming the whole beneficial user of the strip; that they can leave as many lorries as they like there for as long as they like. This is not the claim of an easement, but virtually a claim to possession, if necessary to the exclusion of the owner

No authority would justify that a right this wide & undefined could be the proper subject matter of an easement

To succeed, this claim would have to come under long adverse possession.

Rostill (Possession, Relative Title and Ownership)

Believes land and chattels can be owned - argues that while the holder of the supreme title may have ownership, there are strong args that the holder of an inferior fee simple doesn’t own it

Ownership, philosophically, there must be a relationship between an owner, a thing, and non-owners.

The right to exclude alone is not sufficient (tenants can do this). A problem with the hierarchy view is that an individual’s authority may be supreme among private actors, but its scope may be so restricted that we would not recognise them as being in the position of an owner

Agrees with Honoré and argues he is largely correct, although some key aspects have been misunderstood & the account is incomplete in at least one signif respect. He identifies 3 complicated cases, aside from standard ownership; non-standard/peripheral cases where some of the incidents are missing; borderline cases where ownership is indeterminate; and cases where a person clearly doesn’t have ownership even though some features are present.

He identifies 11 ‘incidents’ (features), although notes there are other ways for classifying them

Ripstein on ownership

Owners have a special sphere of practical authority - within certain limits, their say-so can determine what others may do, or must not do, with respect to their things

Katz on ownership

The owner’s position could be said to be special because their authority is supreme; they are the agenda setter, they make decisions to choose how an asset is used

Honoré’s 11 incidents of ownership

1. the right to exclude the rest of the world (although not necessarily everyone)

2. the liberty to use, at one’s discretion (subject to certain lims)

3. the right to manage; determine who may use the thing and how

4. the right to income from the thing (fruit & rent)

5. the right to capital; a power to alienate the thing & the liberty to consume, destroy or waste it

6. the right to security (against expropriation)

7. unlimited transmissibility (transmission to heirs)

8. absence of term, the interest is not certain (unlike a lease)

9. the duty not to use the thing to harm individuals

10. liability to execution (eg taken away for debt)

11. residuary character; where the ownership is encumbered by other interests, the owner has a residuary right in the thing, and extinguishment of the other interests will generally enure for the benefit of the owner

Appleby v UK 2003 - facts & main decision

Environmental campaigners had been prevented from distributing leaflets in a privately owned shopping centre. They were campaigning & collecting signatures against a plan to build on the only public playing field near Washington town centre.The manager of Galleries told the applicants that permission had been refused because the private owner was strictly neutral on political & religious issues.

The applicants relied on A10 and 11 of the ECHR, complaining that they had been prevented from meeting in the town centre to share information & ideas. They also said that under A13 they had no effective remedy under domestic law. They said the state was directly responsible for the interference with their freedom of expression as it was a public entity that had built the Galleries on public land & a minister who approved the transfer into private ownership.

ECtHR - 6:1 no violation of A10 & 11, unanimously no violation of A13

A10 balances the general interest of the community & the interests of the individual when considering if the State is required to take positive measures of protection. This must not impose an impossible burden on the authorities. The q is whether the govt failed in such a positive obligation

The nature of the convention right is important - freedom of expression is important but not unlimited

The court wasn’t persuaded that freedom of expression requires the automatic creation of rights of entry to private property, or even all publicly owned property. But, where the bar on access to property effectively prevents any effective exercise of freedom of expression/the essence of the right is destroyed, the State may have a positive obligation to protect the right by regulating property rights.

This case - The restriction on the applicants’ ability to communicate their views was only limited to the entrance areas & passageways of the new town centre, not individual businesses or paths into the area = they cannot claim they were effectively prevented from communicating their views

The govt did not fail in any positive obligation to protect freedom of expression. Essentially the same reasoning applies to a11

Appleby v UK 2003 - detail; relevant domestic & international law

Relevant domestic law - at common law, a private property owner may, in certain circs, be presumed to have extended an implied invitation to members of the public to come onto their land for lawful purposes. Incl shops, theatres, restaurants. Any implied invitation may be revoked at will

A private person’s ability to eject people from land is generally unfettered and they don’t have to justify their conduct/be reasonable.

US - have the First Amendment to the Federal Constitution, protecting freedom of speech, meaning people cannot be ejected from private spaces in a arbitrary or discriminatory manner. The UK has no such mechanism.

Canada - the Charter of Rights and Freedoms does not confer a right to use private property as a forum of expression

The applicants suggested that the State was merely under a duty to create legal framework providing effective protection for their rights, balancing them against those of the property owner. ‘Quasi-public’ land could be a definition, excluding eg theatres, where there is a concept of reasonable access, or limitations on arbitrary exclusion powers. The govt argued it wasn’t for the court to introduce this ill-defined principle with a test of reasonable access

Appleby v UK - partial dissent

Judge Maruste - In his view, the property rights of the owners of the shopping centre were unnecessarily given priority over applicant’s freedom of expression & assembly.

‘There is no doubt that the area in its functional nature and essence is a […] “quasi public” space’ - it is a new creation where public interests & money were and still are involved

There was not a balancing exercise done in this case to regulate how the privately owned centre was to be used in the public interest

‘The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society’

R(Day) v Shropshire Council 2023 - facts & note

This case raises some complex issues to do with a legislative framework and the process that a local authority should have followed when disposing of the land (but didn’t). But the key things to draw from the case are that:

• there was a pre-existing statutory trust (this is quite niche for our course)

• which gave recreational rights to the public

• these rights survived even when the land was transferred into private ownership

• It is also interesting because it shows that the public can have various rights to privately owned land: such as the right to roam, public footpaths, town and village greens, highways.

Shrewsbury Town Council sold a parcel of land to CSE Developments in 2017. It’s agreed that prior to this, the land was subject to a statutory trust for the benefit of the residents in the area. In selling, STC failed to comply with the requirements of the Local Govt Act 1972. Following the sale, Shropshire Council granted conditional planning permission to CSE to build 15 houses in 2018.

Day brought judicial review challenging the grant of planning permission. HC allowed this in part, but did not grant a remedy as it felt it was highly likely that the outcome wouldn’t have been substantially diff if the conduct complained of hadn’t occurred

UKSC - Pre-existing statutory trusts giving recreational rights to the public aren’t extinguished even where the land is transferred into private ownership

R(Day) v Shropshire Council 2023 - Lady Rose

Parlt has for years recognised the importance for local communities of having green spaces. Where a local authority uses powers conferred by the Public Health Act 1875 or the Open Spaces Act 1906 to acquire & provide recreation land, the land is subject to a statutory trust in favour of the public for recreational use. Disposing of such land is regulated, public authorities are required to advertise their intention to do so & then consider any objections

Q here is what happens to the public’s right to use the land when the local authority has dispensed of the land without adhering to the requirements

Can the rights survive the transfer of the land into private ownership at all? - SC argued to CoA that the obligations on a local authority can’t be divorced from ownership and/or control over the relevant land by that authority - the statute doesn’t impose any obligations on TPs. CoA felt some control by the council of the land must generally be essential

‘In my judgment the simple transfer of the land subject to the statutory trust into private ownership is not sufficient to extinguish the trusts’. If it did, there would be no point regulating the disposal of such land by statute.

Concl - the appeal should be allowed & the grant of planning permission quashed. It’s imposs to say that it’s highly unlikely that the outcome of the planning application wouldn’t have been substantially diff if the mistake hadn’t been made

Keppell v Bailey 1834 - the numerus clausus

Lord Brougham LC - all incidents to property & its enjoyment are known to the law & dealt with by its principles. These can be certain burdens or rights which may be created & enjoyed over property by parties other than the owner.

It cannot therefore be supposed that new incidents can be devised & attached to property at the fancy of any owner. It would cause confusion for parties to be able to invent new rights over land that could then fall to later parties involved (TPs), and it could severely reduce the value of the land. It would be essentially imposs to know what rights the acquisition of a parcel of land conferred

Allowing choice in what to contract for, meaning a breach gives rise to damages, is reasonable

Hill v Tupper 1863

Shows a restriction on party autonomy to create new property rights - concerned with a right against the world.

A canal company by deed granted C the sole & exclusive right of putting/using pleasure boats for hire on their canal in Basingstoke. D, a landlord of an inn adjoining the canal, put their own pleasure boats on the canal. C was disturbed in the use, enjoyment & possession of the right & lost profit. D claimed the co had no power to grant the exclusive right (and if it did, C could not bring a claim against D for the alleged infringement)

Exchequer Chamber - the grant didn’t create such an estate or interest in H to enable him to maintain an action in his own name against a person who disturbed his right by putting & using pleasure boats on the canal (must have a proprietary interest to bring a claim on their own behalf)

The q here is diff to Keppell (whether the owner of land can burden it in the hands of future owners), but whether C has an interest that allows them to maintain an action against a wrongdoer.

Pollock CB - The answer is that the law ‘will not allow it’

An owner must be content to accept the estate and right to dispose of it is subject to the settled law. A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a ‘new incident’, so as to allow the grantee to sue in their own name for an infringement of the right.

Martin B - ‘To admit the right would lead to the creation of an infinite variety of interests in land, and an indefinite increase of possible estates’. C must obtain permission of the co to sue in their name as it stands.

National Provincial Bank v Ainsworth 1965

COME BACK TO

What is s2 of Law of Property (Miscellaneous Provisions) Act 1989 concerned with?

Contracts to convey land

Applies not just to the sale of land, but other dispositions (defined under s205(1)(ii) LPA 1925 - includes conveyance, but also a devise, bequest, or an appointment of property contained in a will)

(1) - they must be made in writing

(2) - they must contain expressly all of the terms in the document or another document

(3) - must be signed by the parties

(4) - such docs can be rectified by the courts

Walsh v Lonsdale 1882

L agreed to grant W a lease of a mill for 7 yrs & not to run less than 540 looms. It was a fixed rent, payable in advance + a stipulation there would always be a year’s rent payable in advance on demand. The lease wasn’t executed under a deed. C was given possession & paid rent quarterly. One day D demanded a year’s payment + that of the quarter that’d just passed, and put in a distress. C commenced an action for damages for illegal distress, and injunction

Chancery Div - Used to be: one estate at common law by reason of payment from year to year, and an estate in equity under the agreement. Now: the possession is held under the agreement.

Jessel MR - There is only one court and the ‘equity rules prevail in it’. They hold under the same terms in equity as if a lease had been granted, with the protections it would have afforded. Due to this, the landlord also has the same rights as they would’ve had if a lease had been granted. So, the lessee cannot complain about the exercise of the agreement just because it hadn’t been signed.

Lindley LJ - ‘the rights of the parties in this case turn upon the lease as it ought to be framed in pursuance of the contract into which these parties have entered’

Scott v Southern Pacific Mortgages Ltd 2015 - facts & decision

S agreed to sell her freehold interest in her home to a purchaser acting as the nominee of N. The purchaser promised that S would be entitled to remain in occupation indefinitely after completion at a discounted rent, in return for which, S agreed to pay back N a signif part of the completion money, but that arrangement wasn’t mentioned in the contract of sale. The purchaser obtained a buy to let mortgage from C, lender, on the basis that the property was being purchased at full value with vacant possession.

In breach of terms of the mortgage, N purported to grant a 2 year shorthold tenancy at a discounted rent to S. Neither the rights of occupation promised nor the tenancies granted by the purchasers were permitted by the lender’s mortgages.

S claimed she had an equitable interest in the property from the moment of exchange of contracts, which under s29(2)(a)(ii) and para 2 Sch 3 of the Land Registration Act 2002 was an unregistered interest which overrode the interests of the lender

UKSC - unregistered interests which overrode registered dispositions by virtue of s29(2) and para 2 have to be proprietary in nature. Prior to acquisition of the legal estate a purchaser of property cannot grant equitable rights of a proprietary character. S had acquired no more than personal rights. S’s rights had only become proprietary & capable of taking priority over a mortgage when they had been fed by the purchaser’s acquisition of the legal estate

Since the acquisition of the legal estate and the grant of the lendor’s charge were one indivisible transaction, S couldn’t assert an interest against the lender that had only arisen in contemplation

Scott v Southern Pacific Mortgages Ltd 2015 - Lord Collins

Such transactions were a trend at the time, and many were evicted following proceedings for possession by mortgage lenders. They became regulated in 2009, and are now rare. In this case, crim charges are pending, as C and D may have been the victims of fraud. But, the fact does stand S will lose her house if she loses this appeal

The issue of the effect on a mortgagee (D) of a grant of tenancies by a purchaser after the exchange of contracts but before completion of the sale & a mortgage of a property was considered in the 1950s - the conveyance and mortgage were one transaction, and there was no time between conveyance and the mortgage during which the purchaser had acquired sufficient estate to be able to grant to tenancies. Prior to the conveyance, the purchaser only has an equitable interest in the property & the tenants only had personal rights against the purchaser

‘Even if the tenant had equitable rights as against the purchaser, those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers acquisition of the legal estate’. ‘Feeding’ is where a person deficient in a title at the time of a grant gains the capability to grant it - something which was purely an estoppel becomes a lease in interest.

The acquisition of the legal estate and the grant of charge would be one indivisible transaction, and the vendors wouldn’t be able to assert against the lenders their interests only arising on completion

The vendors also argued that they didn’t sell their homes outright to the purchasers, but simply sold them subject to the rights to the leases which they had been promised. But, the contract provided that the property was to be transferred with ‘full title guarantee’ and ‘vacant possession’

Scott v Southern Pacific Mortgages Ltd 2015 - Baroness Hale

Prima facie, the promises made here and on which S acted in giving up ownership of her home bore all the ‘hallmarks of proprietary estoppel’. Is such an estoppel capable of being an interest in land before the person making the promise has become its owner?

Rosset 1989 - a wife had ‘some equitable interest in the property before completion, carved out of the husband’s interest’, where the house was conveyed to her husband after she’d carried out work on it, who contemporaneously charged it to the bank

Whether there was a moment (scintilla temporis) between completion of the purchase and grant of the mortgage in which the purchaser acquired the legal estate and so the estoppel was ‘fed’ before the purchaser disposed of it by way of mortgage → seemingly, the grant of the mortgage is needed to complete the purchase → they are one inseparable transaction

If a tenancy cannot be carved out of the equitable interest the purchaser has before completion, it is hard to see how the sort of beneficial interest the wife was claiming in Rosset could be carved out. Anyway, here this case is dealing with a promise much closer to a tenancy by estoppel → provisional concl that under the ordinary law of property, the nominee purchaser in this case couldn’t give S a tenancy which would bind the lenders before the purchase of the land was complete.

Under the LRA 2002 - s29 deals with priority, refers to interests ‘affecting the estate’, these interests are protected. It makes it clear that there has to be an estate before there can be an interest which affects it

Formalities for conveyances

LP(MP)A 1989 - deeds and their execution (signing, sealing and delivery, although sealing isn’t a requirement anymore)

LPA 1925, s52 - all conveyances of land or of any interest must be made by deed to be valid

s53 - instruments required to be in writing

s54 - creation of interests in land by parol