Intro to Estates and Third Party Interests in Land

Land

• s205(1)(ix) of LPA 1925 definition, “land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings and other corporeal hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments and an easement, right, privilege or benefit in, over or derived from land.”

• Generally, “extends upwards to infinity and downwards to the centre of the Earth” but this is not entirely true as airspace after a certain altitude is generally recognised as shared (Bernstein of Leigh (Baron) v Skyviews & General Ltd (1977))

Chattel

item of movable property (pictures, small sundial, statue (Berkley), fitted carpets, curtains, light fittings, gas fires (Botham v TSB Bank plc (1997))

Fixture

treated as though it is part of the land to which it is attached, generally cannot be removed (plinth, tapestries from D’Eyncourt v Gregory (1866), bungalow from Elitestone Ltd v Morris and another (1997), fitted kitchens (Botham v TSB Bank plc (1997))

Exceptions where a fixture can be removed

provision in the contract that allows for it or the fixture was installed by a tenant

Berkley v Poulett (1977) test

• The method and degree of annexation

• The object and purpose of the annexation

Doctrine of tenure

all land belongs to the Crown and everyone else is a tenant

Estate

period of time that is owned when land is acquired

Creation of a legal estate

• A deed is needed to create a legal estate (s52(1)), also needed to transfer a legal estate or interest

Requirements for a deed

• (s1 of LP(MP)A 1989)

  • Make it clear that it is intended to be a deed

  • Be signed, witnessed and delivered

• Applies to deeds made on or after 31/07/1990

Parol lease exception

Explained in s54(2), the lease must take effect immediately in possession and must have been granted at market rent without a premium

Unregistered vs registered transfers

Unregistered transfer is a ‘conveyance’, registered transfer is a ‘transfer’

Creation of equitable interests under trusts

• s53(1)(b) of the LPA 1925, declaration of trust must be in writing and be signed

• s53(2), trusts do not need formalities, they can be implied trusts because of actions

Estate contracts

• S2 of LP(MP)A 1989

  • In writing, all expressly agreed terms and be signed by/on behalf of all parties

  • Does not apply for s54(2) (short) leases or in the course of public auction

Other equitable interests

• Must be created by signed writing (LPA 1925, s53(1)(a))

• If an easement is created for an uncertain period, it cannot be legal under s1(2)(a) of the LPA 1925 but can be legal under s1(3)

• Restrictive covenants can only be equitable, not legal

Disposition of equitable interests

Any sale, gift or other disposition of an equitable interest must be in writing and signed by the parties (s53(1)(c))

Contract to convey land

• Before this begins, buyer will look at the property, evidence of title, asking the seller questions about it, before deciding

• S2 of the LP(MP)A 1989, must be in writing and contain all the express terms agreed between the parties, other terms may be implied by common law or statute

• Must be signed by or on behalf of each party

• Before the contracts have been exchanged, either party can withdraw from the transaction without penalty

• Once the exchange has happened, the seller still has the legal title to the land, but they can only engage with the buyer about the sale

Actual conveyance/transfer

• Parties must execute a deed (s52), legal title to the property is transferred to the purchaser using a conveyance or transfer

• Must be registered at Land Registry

Electronic conveyancing

Contracts for the sale of land and deeds will be made and signed in electronic form