Land Law

Land

“Land”  includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land...” - s. 205(1)(ix) of the Law of Property Act 1925.

Proprietary rights

Proprietary rights are a legal claim over a property that is enforceable against the land itself, or "in rem," meaning it binds future owners of the land and is not just a personal agreement with the original owner. Proprietary rights are capable of binding third parties.

Freehold

Permanent and absolute tenure/ownership of land or property with freedom to dispose of it at will. The owner owns everything on the property and anything built on it/outside structures. There is indefinite ownership, so the owner can pass down the property without any time constraints.

Freehold estate

The freehold estate or ‘estate in fee simple absolute in possession’ is the closest thing to absolute ownership of land that is recognized in land law today.

Fee simple

Means that the freeholder has the right to use and enjoy the land for the duration of her life and can transfer the land to others either during her lifetime (as a gift or by sale) or on her death under a will. Where land is transferred or passes to a third party, that person becomes the new estate owner and can themselves enjoy the land for their lifetime, and pass the land to their heirs and so on.

Absolute

Means that the freeholder’s rights are neither conditional nor liable to be brought to an end on the occurrence of some event (for example when a certain age is reached).

In possession

Means that the freeholder enjoys an immediate right to occupy and enjoy the land.

Leasehold

You have a lease which sets out what you can and cannot do as a leaseholder. If you own a leasehold property, you do not own the land it stands on. Ownership of the property returns to the landlord when the lease comes to an end.

Leasehold estate

The leasehold estate or ‘term of years absolute’. The person holding the leasehold estate is known as the ‘leaseholder’, ‘lessee’, or ‘tenant’. A leaseholder is entitled to use and enjoyment of the land exclusively for a certain period of time and can transfer or sell (‘assign’) the leasehold to a third party provided the term of the lease has not come to an end. It is this limited duration which sets apart the leasehold from the freehold estate. The leasehold estate must be of a definable duration and during that defined period, the leaseholder is taken as exercising rights akin to a temporary owner.

Interest

An interest in land is a property right which does not confer any rights of ownership. An interest in land describes a right that someone enjoys over another’s land. The key feature of interests in land is that they are proprietary, so they are enforceable not just between the original parties but also potentially against third parties, such as later owners of the land over which they operate.

Mortgages

A type of interest in land, a mortgage is a debt secured against the debtor's land.

Bernstein v Skyviews and General Ltd [1978]

The rights of a land owner over his land extend only to a height necessary for the ordinary use and enjoyment of his land, not the entire airspace above the property.

Kelsen v Imperial Tobacco Co [1957]

Where the lower stratum is intruded upon or invaded in some way, the rights of a landowner extend to the airspace above their property, and any unauthorized intrusion into this space, however minimal, is a trespass. The landowner may be able to bring an action for trespass irrespective of whether any damage has been caused to the landowner.

Pickering v Rudd [1815]

Landowners do own the air above their land up to a reasonable height.

Property

Property is a relationship, not a thing.

Estate

An ‘estate’ in land describes how long a person is entitled to enjoy rights of use and possession of that land. An estate is an ‘interest in land for some particular duration’. An estate reflects ‘a time in the land, or land for a time...” The type of estate will determine the length of time that rights of use and possession can be enjoyed. The two types of estates are freeholds and leaseholds. 

Deed

A formal written legal document (usually a contract) that confirms an agreement between parties whereby an interest, right or property, or a binding obligation is created or confirmed.

Under s. 1(2) of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989), an instrument is not a deed unless:

1. It makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and

2. It is validly executed as a deed by that person or, as the case may be, one or more of those parties. To validly execute a deed it must be signed and witnessed.

Registrable dispositions

A right that operates only if they have a deed and have been registered.

Trust

The trust allows for ownership to be split into ownership at law and ownership in equity so that there can be more than one owner of land. The result is that one person holds the legal title whilst another is able to hold the equitable title. The trust allows for a single parcel of land to have a legal owner and a separate equitable owner. The legal owner holds the land on trust for the equitable owner. The effect is that the trustee acts almost as the manager of the land and holds the land for the benefit of the equitable owner, who is entitled to its benefits.

Settlor

The person(s) who created the trust and the absolute owner of the property.

Trustee

The legal owner that holds the land on trust for the equitable owner/beneficiary. 

Beneficiary

The equitable owner of the land.

Express Trusts

Trusts that are expressly created deliberately and formally. Express trusts of land must satisfy formality requirements. They must be ‘manifested and proved by some writing’ under section 53(1)(b) of the LPA 1925.

Fixed Trusts

A trust where there is a certain fixed group of beneficiaries and the property is held in specific shares.

Discretionary Trusts

Trusts where the trustees have the discretion to choose which, of a defined class or group, they choose to apply the income or property of the trust to.

Constructive Trusts

A trust that arises by operation of law where it would be unconscionable for a person who holds an asset to deny the beneficial interest of another person in the asset.

Implied Trusts

Trusts that can be created by operation of law (implication by the court), not by an express, written declaration, arising from the presumed intention of the parties or the circumstances of a situation.

Re Kayford Ltd [1975] 1 WLR 279

1. There is no need for writing to declare a trust of personal property. An express trust for advance payments for goods can be created by actions of the creditor.

2. To declare a trust of personal property, three matters must be certain: the trust subject matter, its objects (the beneficiaries) and that the settlor intended to create a trust.

3. There is no need for the word ‘trust’ to be used: certainty of intention can be inferred from the circumstances or other language.

Alienable

More capable of being sold or transferred from one party to another.

Land registry

A record of information about ownership of and interests affecting land and property.

Mirror

The register reflects the title accurately and completely. In principle, the register should reflect the nature of the title to the land + who is the registered proprietor.

Curtain

Preserves the register by showing what other legal interests are there on the title. Equitable interests are kept behind the curtain to be hidden/protected in order to simplify transactions.

Insurance

Indemnification by the state. When the system fails to accurately reflect the position, a person may be entitled to indemnification if they are wronged. The state acts as the insurer for the property system.

Registered Land

If land is ‘registered’, this means the land + title to land has been registered (recorded) at Land Registry. Registered land is subject to the provisions of both the LPA 1925 and the LRA 2002.

Unregistered Land

Land that is ‘unregistered’, the title to the land has not been registered (recorded) at Land Registry. Unregistered land is subject to the provisions of the LPA 1925 and the LCA 1972.

Notice

A notice is an entry made in the register in respect of the burden of an interest affecting a registered estate or charge. A notice is an entry which is registered with the Land Registry in order for a third party's interest to be secured against your property. A notice has to be submitted by the person who will benefit from that interest (i.e., the third party). It is a method by which a third party right is protected, and a notice will appear in the charges register of the title affected.

Agreed Notice

An agreed notice can be registered with either the proprietor/property owner's consent or evidence that the interest exists. The Land Registry will only remove the agreed notice once it is satisfied that the interest it protects has come to an end. If the interest has only partially ended or the Land Registry does not believe that it has ended, then it will make an appropriate entry on the title's register. Cannot be removed by the proprietor.

An agreed notice in the Land Registry is an entry which can only be registered if  one of three circumstances listed in s. 34(3) is met:

1. The proprietor themself (or someone who is entitled to act as one) or with their consent.

2. The registrar (i.e., the Land Registry), without the cooperation of the proprietor, in situations where the third party applicant can prove that their interest is valid (supporting evidence must be presented, such as a charging order)

3. The Registrar is satisfied as to the validity of the applicant’s claim. The registrar (i.e., the Land Registry), without the cooperation of the proprietor, in situations where the third party applicant can prove that their interest is valid (supporting evidence must be presented, such as a charging order).

Unilateral Notice

A unilateral notice can be registered without the property owner's consent and the applicant does not need to provide any evidence that the interest exists. The applicant or their conveyancer only needs to certify that the interest which the notice purports to protect exists. Can be removed by the proprietor.

Restriction

Restrictions will protect the third party by blocking dispositions from being made. A restriction is an entry on a property's title register that controls or prevents certain "dispositions" (like a sale, transfer, or mortgage) from being registered unless specific conditions are met. These are used to protect a third party's interest, such as a charge or agreement, and can be set to apply indefinitely, for a specific period, or until a certain event, like obtaining consent from a third party or providing a certificate. 

• Restrictions offer the best protection as they prevent dispositions being made unless the disposition complies with the requirements of the restriction. For example, a restriction may say that no disposition can be registered without the beneficiary of the restriction's consent.

• To register a restriction the applicant will need the property owner's consent or evidence that it is entitled to register the restriction.

• Anyone can make an application to cancel the restriction, but they must be able to show that the interest protected by the restriction has ended or no longer binds the property for another reason. The restriction cannot be cancelled for any other reason.

First Registration

First registration of a title describes the very moment when previously unregistered

land becomes registered. First registration under the LRA is provided for in two ways…

1. Voluntary first registration under s. 3 of the LRA 2002.

2. Compulsory first registration under s. 4. of the LRA

Events that ‘trigger’ compulsory registration of previously unregistered titles (s. 4 of the LRA):

1. The transfer of an unregistered freehold/leasehold with more than seven years to run.

2. The grant of a lease for a term of more than seven years.

3. The grant of a reversionary lease for any term where the lease is to take effect more than three months after the grant.

4. The grant of a protected, first legal mortgage.

   • The Lord Chancellor is endowed under s. 5 with the power to extend the categories of triggering events even further.

Walker v Burton [2013]

Registration confers title on the registered proprietor even where there has been no conveyance of the legal estate to that proprietor. This means that even if a person is registered as proprietor in error as a result of fraud or if there has been a conveyance of the legal estate but it is intrinsically void, the proprietor can rely on s. 58 of the LRA 2002 to assert that title has conclusively vested in them.

Swift 1st v Chief Land Registrar [2015]

It is registration rather than the quality of the prior disposition which creates and constitutes the proprietor’s title to the registered estate or charge: see s. 58(1) LRA 2002.

A party (A) who acquires title under a forged disposition is entitled to an indemnity when the register is rectified, as loss is presumed under paragraph 1(2)(b) of Schedule 8 LRA 2002, regardless of whether another party (B) has an overriding interest in the property.

Disponee

This is the person to whom a registrable disposition is made, for example a purchaser of the registered title.

Valuable consideration

(Consideration) A benefit or detriment that is legally sufficient to support a transaction, and it can include money, a promise to pay money, or other rights, interests, or profits. It is essential for creating an enforceable contract, and in the context of registered land, a disposition for valuable consideration typically takes priority over unregistered interests.

The ‘basic rule’ of priority

Section 28 of the LRA 2002 provides that whether an interest affecting registered land is binding is determined according to its date of creation: prior interests take priority over later dispositions. “First in time” priority.

Section 29 exception to the ‘basic rule’:

Section 29 of the LRA 2002 works like this: if there is a registrable disposition of a registered estate and that disposition is made for valuable consideration and the disposition is registered, that disposition will take priority over any pre-existing proprietary rights affecting the land except (1) those pre-existing interests which are protected by the entry of a notice on the register and (2) any overriding interests.

Mistake

A mistake in this context refers specifically to a mistake of the Registrar assessed at the time of the entry on the register. A correctable mistake occurs whenever a change is made to a register, but nobody was legally entitled to procure that change at the moment when it was made.

Voidable

There was legal basis to register it, not a mistake. All legal transactions are voidable.

Void

No legal basis ever/at all, therefore a mistake. Illegal, wrong from the start. Such as fraud. 

NRAM Ltd v Evans [2017]

The question of whether the entry was a mistake within the meaning of Schedule 4 Land Registration Act 2002 should be determined according to the position at the point in time where the entry or deletion was made.

Sets out void vs voidable: The registration of a void disposition is a mistake, but the registration of a voidable disposition is not a mistake provided that it had not been rescinded at the time of registration

Alteration

Alteration refers to all changes to the register with the exception of ‘rectification’.

Rectification

Rectifications are alterations to the register to correct mistakes where the alteration will or could adversely/prejudicially affect the title of a proprietor. 

“In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which—

1. involves the correction of a mistake, and

2. prejudicially affects the title of a registered proprietor.” - Schedule 4, Paragraph 1 of LRA 2002.

Under Schedule. 4, paragraph 1, for a rectification to arise, two conditions must be met:

1. The alteration involves correction of a mistake, and

2. This alteration prejudicially affects the title of the registered proprietor.

Overriding interest

Overriding interest is a right or interest affecting registered land that binds a new owner (or any acquirer) even though it's not written on the Land Register.

Under the scheme of the LRA, overriding interests operate in two contexts:

1. Unregistered interests which override first registration: Schedule 1 of the LRA 2002, and

2. Unregistered interests which override a registered disposition—disposition of an already registered title: Schedule 3 of the LRA 2002.

Actual occupation

Having a substantial physical presence or control over land, not just a legal right, creating an overriding interest that binds purchasers even if unregistered, protecting rights like equitable interests (e.g., family home shares) or short leases.

Essential requirements or elements of actual occupation

1. The general requirements for actual occupation—which, in practice, apply to both Schedules 1 and 3 and must be satisfied under both schedules.

2. The exceptions to actual occupation which apply only to Sch. 3.

The general requirements for actual occupation:

A person claiming an overriding interest under either Schedule 1 or 3 on the basis of actual occupation must satisfy two general requirements:

1. Qualifying interest

2. Actual occupation

What constitutes a ‘qualifying interest’?

1. Any (non-excluded) proprietary right can amount to a ‘qualifying interest’ for the purposes of actual occupation. Unless expressly exempted by statute, any proprietary interest in land can, in theory, amount to a ‘qualifying interest’

2. Only proprietary interests rather than purely personal rights are ‘qualifying interests’ for actual occupation to be an overriding interest (National Provincial Bank v Ainsworth [1965]).

3. Interests which are capable of being protected on the register can enjoy a ‘dual status’ and also amount to overriding interests if coupled with actual occupation.

4. Interests which have been overreached do not constitute qualifying interests.

National Provincial Bank v Ainsworth [1965]

Only proprietary interests rather than purely personal rights are ‘qualifying interests’ for actual occupation to be an overriding interest. 

Williams and Glyn's Bank v Boland [1980]

A beneficial interest in land that is not overreached upon sale, is an overriding interest when the beneficiary is in actual occupation.

Te key factors that will be relevant when examining if a person is in actual occupation of land: 

1. The degree of permanence and continuity of presence of the person concerned.

2. The intentions and wishes of that person.

3. The length of absence from the property and the reason for it.

4. The nature of the property and personal circumstances of the person.

Abbey National Building Society v Cann [1990]

Actual occupation had to have some degree of permanence or continuity and acts merely preparatory of residential occupation will not suffice to prove actual occupation.

Chhokar v Chhokar [1984]

The law will permit a finding of actual occupation where there are interruptions to occupation or absences from the land. Where a person is not physically present on land, actual occupation will however only be demonstrated where the court is satisfied that there is a clear and continuing intention to return.

Link Lending Ltd v Bustard [2010]

Demonstration of continued intention to return home is a relevant factor for actual occupation when there are periods of absence.

Thompson v Foy [2009]

Where there is evidence of a positive decision not to return to the property, this positive intention will also preclude a finding of actual occupation.

Lloyds Bank plc v Rosset [1990]

Where property is purchased with the purpose of providing a home, actual occupation is logically to be equated with residence. In other words, a person found to be ‘residing’ on a plot of land should have no difficulty persuading a court that they are in actual occupation of that land. 

Strand Securities v Caswell [1965]

The presence of belongings in itself (possessions such as furniture) on land seemingly does not automatically amount to actual occupation.

Hypo-Mortgage Services Ltd v Robinson [1997]

Minors living with their parents (the parents enjoying interests in the land) cannot be in actual occupation of that property for the purposes of overriding interests. 

Overreaching

Overreaching refers to a situation where a person's equitable property right is swept aside, detached from a piece of property, and reattached to money that is given by a third party for the property.

Requirements of overreaching to operate:

1. There must be an equitable interest which is capable of being overreached. (Section 2 of the LPA 1925)

2. The statutory conditions for overreaching must be met. (ss 2 and 27 of the LPA 1925)

These statutory conditions for overreaching are provided in ss 2 and 27 of the LPA 1925:

1. There must be ‘a conveyance to a purchaser of a legal estate in land’ (s. 2(1) of the LPA 1925).

2. Purchase/mortgage monies must be paid to at least two trustees or a trust corporation (s. 27 of the LPA 1925).

City of London BS v Flegg [1988]

Although under the Land Registration Act 1925 section 70, people with actual occupation may have an overriding interest that would take priority over a third party (like the building society), this does not happen if the purchase money is paid to two or more trustees or a trust corporation (statutory requirement).

Co-ownership

Concurrent ownership of the same property. This land may be freehold or it may be leasehold. Ownership is ‘concurrent’ by which we mean that the ownership rights enjoyed by those co-owners are enjoyed simultaneously.

• Under English law, all forms of shared ownership must operate behind a trust. This means that wherever there is co-ownership, a trust will arise.

Trust

The trust is a device which involves the separation of the formal legal title to land from the underlying, equitable ownership of the land called the ‘equitable’ or ‘beneficial interest’.

The two types of co-ownership

1. Joint tenancy

2. Tenancy in common

Joint tenancy

There is no division of the estate into distinct shares i.e. each co-owner is wholly entitled. There is a right of survivorship.

Right of survivorship

The interest of the co-owner is extinguished upon death and the surviving tenant(s) get(s) the whole estate. Takes precedence over the terms of a will, unless there are joint wills which provide for mutual agreement to sever the joint tenancy.

Hammersmith & Fulham LBC v Monk [1992]

In a joint tenancy, notice to quit served by one party is sufficient to terminate as it is in substance not a positive act.

Joint tenancy arises when:

The four unities are established

The Four Unities

Unities of PITT:

1. Unity of Possession.

2. Unity of Interest.

3. Unity of Title.

4. Unity of Time.

Unity of Possession

This means that no one co-owner can exclude the other from any area of the property; each co-owner is equally entitled to possession. All co-owners are equally entitled to use the land.

Unity of Interest

The interest of each co-owner is of the same ‘extent, nature and duration’.

Unity of Title

Each co-owner derives title from the same source, such as the same conveyancing document (e.g. deed of conveyance or will) or same acquisitive act (i.e. adverse possession).

Unity of Time

The interest of each co-owner vests at the same time AND then the co-owners continue to own simultaneously. i.e. if A buys a house, and later grants an equal share to B, there is no ‘unity of time’. The interest cannot come into being at different points in time.

Tenancy in Common

The estate is held in undivided shares (the estate is undivided, but each co-owner owns a distinct share in the whole house). There is no right of survivorship (on death, co-owner’s share passes under will/rules of intestacy).

• A tenant in common is able to sell their share or even mortgage it.

• A tenant in common is also able to draw up a will bequeathing their share.

• At law, co-ownership can only exist under a joint tenancy. There can be no tenancy in common at law: s. 1(6) of the LPA 1925.

The one unity required for tenancy in common

The Unity of Possession.

Equity recognizes…

Joint tenancy and tenancy in common

Legal title only recognizes…

Joint tenancy

How to know whether co-owners are joint tenants or tenants in common:

1. Any express declarations of trust.

2. The presence or otherwise of the four unities.

3. The application of various equitable presumptions.

Pink v Lawrence [1978]

If there was a valid express declaration of trust for being joint tenants, it did not matter that one party did not contribute towards the purchase.

Goodman v Gallant [1986]

Where a conveyance contains an express declaration of trust that makes clear the parties are to hold property as joint tenants, this express statement will be exhaustive and conclusive in the absence of evidence of fraud or a material change of circumstances.

The Equitable Presumptions in Co-ownership

1. Where co-owners make unequal contributions to the purchase price: equity presumes tenancy in common (Harrison v Barton [1860] 1 J&H 287).

2. Where the co-owners made equal contributions to the purchase price: equity presumes equitable joint tenancy (Bernard v Joseph [1982] Ch 391).

3. Where there is a business/commercial context, equity presumes tenancy in common: – e.g. property bought by business partners (Buckley v Barber [1851] 6 Exch. 164)

Harrison v Barton [1860]

Where co-owners make unequal contributions to the purchase price: equity presumes tenancy in common.

Bernard v Joseph [1982]

Where the co-owners made equal contributions to the purchase price: equity presumes equitable joint tenancy.

Buckley v Barber [1851]

Where there is a business/commercial context, equity presumes tenancy in common.

Severance

The process by which a joint tenancy becomes a tenancy in common.