Introductory Lecture Notes on Land Law

WHAT IS LAND LAW?

  • Cooke (2012): “Land law is the law concerning property rights in land, also known as the law of real property”.
  • From that quote, a few sub-questions flow:
    • What are “property rights”?
    • What is “land”?
    • If land law = law of real property, that means land = real property
    • What does “real property” mean?

WHAT IS PROPERTY?

  • People often struggle to define property; vague descriptions like “things” or “stuff” are not fully accurate.
  • Smith (2017) identifies two principal defining elements:
    • The ability to be bought/sold
    • The right to exclude others
  • Gray (1991) adds: Assignability + Excludability
  • Gray (1991):
    • “Property is not about enjoyment of access but about control over access… [it] is the power-relation constituted by the state's endorsement of private claims to regulate the access of strangers to the benefits of particular resources.”

TWO TYPES OF PROPERTY IN ENGLISH LAW

  • REAL PROPERTY: All property rights relating to land EXCEPT leases
  • PERSONAL PROPERTY: Leases + all other types of property
    • Tangible personal property: Cars, paintings (chattels)
    • Intangible personal property: Stocks, IP (chose in action)
  • We will be looking at the distinction between real and personal property in the first lecture itself – consider difference between personal item and a fixture/part and parcel of land!

WHY THE DISTINCTION?

  • Stemmed from the type of remedy afforded when someone’s rights in the property were interfered with
  • If deprived of personal property – cannot claim for the actual item itself; can only claim damages for value
  • If deprived of real property – can claim for the actual piece of land or for the specific right in the piece of land
  • “Real Action”
  • Cooke (2012): the word “real” derives from Latin word “res”, a thing; for land, the remedy is the thing itself; you do not have to settle for damages

UNIQUE POSITION OF LEASES

  • Product of the feudal system of landholding: one held land from a superior lord in exchange for service
  • Leases viewed as a commercial transaction rooted in contract – tenant cannot claim the land itself, can only claim in contract against the landlord
  • Feudal system no longer operative – viewing leases purely as contract is unrealistic
  • Today leases give rise to rights in land – Chattels Real

QUICK RECAP

  • Property are things which can be bought/sold and where owner can exclude others
  • Land is a type of property known as real property
  • Land law is the study of property rights in land
  • More specifically, Land law is the study of how property rights in land are created, exercised and enforced
  • So, what then are “property rights”?

TWO TYPES OF RIGHTS IN REAL PROPERTY (LAND)

  • PROPERTY RIGHTS: Rights in the land itself
    • Can be enforced against a third party
    • Rights in rem (right is tied to the “thing” in this case land)
  • PERSONAL RIGHTS: Rights against a person
    • Rights in personam (right is tied to the person)
    • May sometimes relate to a piece of land
    • Cannot be enforced against a third party

WHAT ARE PROPERTY/PROPRIETARY RIGHTS IN LAND?

  • A spectrum of rights, sometimes known as proprietary rights
  • Not all property rights in land have the same value or strength
  • Cooke (2012): think of property right as an “ability” to do something
  • Ownership is the most common property right identified
  • Cooke (2012): ownership defined by two key abilities - alienability and exclusion
  • But it is not just “owners” who have property rights in land
    • There may be people who have property rights in land owned by another
    • Such persons may have lesser or weaker rights than the owner but rights nonetheless (non-ownerships rights/third party rights/third party interests)
    • Such rights can be exercised in specific ways against the owner or others who may interfere with that rights
    • Eg: easement gives right holder ability to utilise someone else land in a specific way for advantage of his land and owner cannot prevent him from exercising his right, but neither can right holder exclude owner from allowing another the right

QUICK RECAP: Land Law

  • Is the study of property rights in land
  • More specifically, Land Law is the study of how property rights in land are created, exercised and enforced
  • Now that we know what are property rights in land, let’s examine the concept of land in more detail

UNDERSTANDING LAND LAW

  • Birks, P (1998) Before We Begin: Five Keys to Land Law, in Land Law: Themes and Perspectives, ed. S. Bright & J. Dewar

SPACE, REALITY, DUALITY, FACILITATION, TIME, FORMALITY

  • TIME: Integral concept when talking about ownership of land
    • Cannot own land – can only own an “ownership” right in land known as title
    • What does title give you: slice of time in land
    • We will examine this a little deeper in Lecture Two!
  • SPACE: Identify the space in which “land” exists
    • When you own land, do you just own the surface? What about airspace and underground space – are those part of the land you “own”?
    • Once you define the space that constitutes the land that you “own”, you may then face contested battles for different strands of rights within that space
    • A landowner may grant third parties some limited rights over land that he “owns”, so you can have multiple rights being claimed over a single space of land
    • The creation of third party rights which exercise over land will be covered over multiple lectures throughout the year!
  • REALITY: Real property vs Personal property; Real rights (property/proprietary rights) vs Personal Rights
    • The distinction between real and personal property is one we will visit in Lecture One when we look at the distinction between fixtures and chattels
    • The line between property and personal rights is something we will revisit constantly in later lectures on Lease/Licence distinction, Easement/Licence distinction, Licence/Constructive Trust distinction
  • DUALITY: VIEWING LAND THROUGH DIFFERENT DIMENSIONS
    • Property rights can be created and recognised at law or in equity – more on Law and Equity this later!
    • Distinction between the reason why someone may have a right in the land
    • Relevant when we do the lecture on mortgages Beneficial Interests and Security Interests
    • Title or “ownership” of land is not absolute but only relative
    • Can have more than one person claiming title to land
    • We will look at this in Lecture Four when we do Adverse Possession Relativity of Title
  • LAW AND EQUITY (two parallel planes)
    • RIGHTS IN EQUITY: Equitable Rights
    • RIGHTS AT LAW: Legal Rights
    • Imagine all rights in land existing on two parallel planes: legal rights on one plane; equitable rights on another
    • A single piece of land can have both legal and equitable rights, held by different or same people, and both can be enforced against third parties

PROPERTY/PROPRIETARY RIGHTS IN LAND MAY BE:

  • LEGAL: Derived from and enforced in common law courts; Legal remedies
  • EQUITABLE: Developed through conscience-based jurisdiction of the King’s Chancellor and later the Court of Chancery; Has now developed its own set of rules but rooted in discretion; Equitable Remedies

WHY IS IT IMPORTANT TO KNOW THE DIFFERENCE?

  • It will affect the way the right is protected, recognised and enforced
  • Traditionally, legal rights bind the whole world – regardless of knowledge
  • Equitable rights only bind those who have notice of the right
  • Today, this distinction is slightly less important; it will depend on whether the right is created correctly and/or recorded correctly on the Land Register
  • But still need to know the distinction to identify how a right is created – more of this in Lectures Two and Three

FORMALITY

  • Land Law requires formalities to create or transfer rights in land
  • Since rights in land are intangible, we need some kind of identifiable way to know when a right has been created/transferred
  • But there are instances where land law recognises property rights without formalities
  • Formalities come into play in 4 main areas:
    • creation of estate contracts
    • formal trusts
    • conveyance by deed
    • Land Registration
  • We will look at the first two in Lectures Two and Three and at Land Registration next semester where it will form a core part of the syllabus and assessment!
  • The creation of rights without formalities is evidence in topics of Adverse Possession, Informal Trusts, Proprietary Estoppel and in the operation of Overriding Interests in Land Registration

THE KEYCHAIN: FACILITATION

  • Land Law exists to facilitate/enable a specific objective – what?
  • Birks (1998): “Each of the five keys…can be seen as facilitating the achievement of goals which people routinely want to achieve. It helps very much to keep in mind what landowners and would-be landowners are likely to want”
  • Land is a contested space. One person’s goals in relation to a piece of land may conflict with another’s. How does Land Law help each to achieve their goals?
  • How does the Law balance conflicting rights? What if the Law enables one at the expense of another? This issue permeates all of Land Law. We will encounter it soon when we do Adverse Possession in Lecture Four, but this idea of balancing/weighing contested claims can be seen in our study of landlord/tenant, insistence of formalities vs. flexibility of equity, the existence of off-register binding rights etc.

SMITH (2017): THE CENTRAL CONCERNS OF PROPERTY LAW

  • Identify the owner and the estate they own
  • Identify if there are any non-ownership/third party property rights? Identify relevant property rights on a piece of land
  • Examine how the rights have been created or acquired
  • Ascertain nature and quality of those property rights
  • What do they owe to other parties? What legal action can they take if their rights are breached?
  • Ascertain the rights and duties of the parties holding those rights
  • Property rights are capable of binding 3rd parties
  • If someone buys the land from the owner, will the new owner be bound by the existing non-ownership rights held by others? Ascertain impact of those rights on purchasers of the land

SCENARIO (Page 25)

  • Scenario recap:
    • Andy owns Blue House and lives there with his girlfriend, Beatrice. The house is registered in Andy’s name but Beatrice paid 50% of the purchase price.
    • Andy has been using the swimming pool in his neighbour Marsha’s house (White House) and Marsha has been parking her car in Andy’s garden.
    • Linda is in Andy’s shed conversion for which she pays him £500 monthly.
    • Andy now sells Blue House to Damien and Marsha sells White House to William
  • Contested issues that arise:
    • What rights exist for Beatrice given the 50% contribution but title in Andy’s name?
    • Do lodgings, usage of the pool, or parking create any proprietary interests (easements, licenses, or other rights) over either property?
    • Does Linda’s £500 monthly payment create any tenancy, license, or proprietary interest in the shed?
    • How will these rights interact with the new owners (Damien and William) upon registration/transfer, and which rights are binding on a purchaser?
    • Assess potential conflicts between English real property rights, leases, and equitable rights in the transfers under the dual framework of law and equity.