Land Law - Lecture notes PDF

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Land LawLectures 1 and 2 - introductionWhat is land law? Property law regulates what people can do with objects of value Under property law, land law is concerned with the relationship between people and land in all its various forms – house, lane, field, uni campus, shopping centre Land is scarce a...

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Land Law Lectures 1 and 2 - introduction What is land law? Property law regulates what people can do with objects of value Under property law, land law is concerned with the relationship between people and land in all its various forms – house, lane, field, uni campus, shopping centre Land is scarce and people seek a lot of different things from it The body of law that governs the creation, exercise, transfer and termination of rights and interests in land Objectives of land law: The reconcile the competing interests that people have with regards to land To govern the rights and obligations of people in respect of land but only in certain ways (environmental etc) To regulate the creation, exercise, transfer and termination of interests in land Questions need to be asked… Are the objectives as neutral, clear, obvious, justifiable and socially appropriate as they sound? Or do they work to meet the certain needs of society? Is land law another tool to support powerful political and social agendas? (traditional landowners, financial institutions/ the wealthy Does land law show bias on the grounds of race or gender? How does the law decide between competing interests in land? Whose interests should the law be protecting and why? Landlord or tenant Who is given the protection of law regarding bankruptcy? The family of the bankrupt whose home is at risk or the bankrupt’s creditors There is a guiding principle and a set of rules Squatting… Title owner or squatters – land is unused by owner but is being used by other person Does it make a difference if it’s a field or house or office? How do we conceptualise and view the value of land and what it should be for? Investment value… land just money with trees on it, something to be built on, mortgaged, leased (particularly in the Western industrial society, adds economic value) Use value… as a home, as a recreational facility Intrinsic value… as part of the natural world, the focus of conversation Identity or personality value… as a manifestation of the self or the community identity Why does it matter and what does it achieve? It aims to achieve the efficient use of land and land resources “Largely unnoticed, land law provides a running commentary on every single action of every day” – Gray and Gray, 2011 There are two legal estates in land: Freehold land – fee simple absolute in possession, closest to absolute ownership of land that you can get under English law and gives you the largest collection of rights in the land that

you can obtain and these rights are of unlimited duration. Can be passed through inheritance to someone else Leasehold estate – this is known of the term of years absolute, it is the second legal estate in land and gives you extensive rights but rights of a limited duration. Ownership of a flat is often done by a long leasehold ownership How to acquire land is through conveyancing- the most common –oral agreement then written contract then create a deed then register land Or it can acquired through adverse possession – someone goes onto someone elses land and begins to use it without their permission. Over a certain period of time they take possession of it and ouse the paper titleholder, they act as though the owner would Since 2003 this has been much more difficult Mortgages – a secured loan in which a property right is acquired by the lender over the land of the borrower Mortgage repossessions – both are both personally liable to pay the money 40,000 in 2011 and 45,000 in 2012 roughly, whereas there were 20,000 in 2006 (council of mortgage lenders) Made a contract with bank to pay back money but also secured property Property right – propriety right for borrower over lender, very important Banks thus need to feel secure to whom they lend to Easements – another property right but smaller, having a right in somebody else’s land A clear example of how land law works to facilitate how people can live together We need a legal system to be able to move around on other peoples land so successive owners around you need to be negotiated with, which can be time consuming and expensive This means easements are a right which run with the land that allows you to make limited use of your neighbours land in a particular way – most common: right of way Other ones like car parks, walking grounds etc Covenants – can be freehold or leasehold Another limited property right on neighbours land Unlike easement, allows you to stop your neighbour from doing something on their land that you don’t want them to do The covenantee has the benefit as the property right whereas the covenantor has the burden Sharing ownership of land (co-ownership) More than one person entitled to the freehold or leasehold estate in land at the same time = co-ownership Common to have different property interests in one piece of land Registered and unregistered land This has a major distinction in English law – this refers to the title to the land Requiring the freehold of a house needs registration It matters because the rules governing the way we protect the interests in land differ Need to take away the idea that rules of registered and unregistered land are the most important Vast majority of land in England is registered at Land Registry Need to be aware of both rules as there is some unregistered land Registered land – title of estate registered at Land Registry

Unregistered land – title deeds by owner being held somewhere but makes proving who owns much more difficult, far more problematic Major statutes: Law of Property Act 1925 – answer to almost any question comes from this, first attempt to simplify land law English land law developed over centuries and was archaic and complicated Land Registration Act 2002 – to sort out land registration, more recent, law commission are trying to rethink Trusts of Land and Appointment of Trustees Act 1966 – governs co-ownership What is property? It is a ‘power relationship’ between a person and a valuable resource Property in an object/ resource gives some ‘control’ over that object/ resource It’s often spoken about as the thing itself – car, building etc – but it also involves people and it isn’t really the object of the right, it describes the relationship between the owner, the thing and the rest of the world Traditional features of property: The right to possess and use the resource as desired by owner (seen as freehold) The right to transfer it to someone else, and be able to choose when to do so The right to exclude other people from it Focusing on these rights can cause problems environmentally, in other peoples interests etc Bradford v Pickles (1895) Pickles owned some land in Bradford through which water perculated and provided people of Bradford with their drinking water He decided to block this supply unless they paid him a lot of money Q: should law favour Pickles as an owner with the right to do what he wants or take into account the needs of people living in Bradford as a wider society Decision: court felt ‘Pickles was churnish and selfish, his ownership of the land made his action allowed’ even if he held a city to ransom How private really is private property? Much ‘private property’ is used by groups… families, companies, community groups etc V different today from Pickles case The traditional rights of ownership are not absolute at all: • Restrictions on building on your land or changing its use – planning law, conservation law • Restrictions on the kind of activities you engage in on your land - businesses • Restrictions on who you can exclude from your land How private should it be? Different conceptions of property… Stewardship – ownership as responsibility to manage the land for the community benefit Commons – not necessarily ‘tragic’ as suggested by Hardin, increased recognition of value of common property regimes, group rights but this fell out of fashion as Harden wrote an article saying they were terrible and would always fail Personhood – the ties between person and property should be given particular weight, draws on philosophy of Heigal, law needs to respect the link between personality of owner and object property ‘Theft’ – critical/ Marxist perspectives on private property, always undermines development of cohesive society, very extreme, Pierre-Joseph Proudhon work Property in land – fragmentation of ownership

No real concept of ‘ownership’ in English law – one person has complete control over all the rights in a plot of land You can have a large bundle of rights – mainly in freehold – but a number of different people can have property rights in one piece of land at one time – it is fragmented Difference between proprietary and personal rights: Why is having property in a resource (in land) important? How do you identify a property right when you see one? The value of a property of a right is that it binds third parties, once there and properly registered, it stays If you want to occupy land, a property right gives you a lease, means the new owner is still bound by that right But personal contract means you can be forced to leave Proprietary rights – examples - Freehold/leasehold - Easement - Freehold covenant - Mortgage (other non-land based examples include ownership of your car, of copyright in your lecture notes etc)

Lecture 3 – fixtures and fittings What is land law? The body of law that governs the creation, exercise, transfer and termination of rights and interests in land What is the meaning of the word land? Looking at rights in land, will help define what it means We can look at statutes to see if they will assist in the meaning – Law of Property Act 1925 S205 – Land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or part of buildings, (whether division is horizontal, vertical or made in some other way) and other corporeal hereditaments; also a manor, and advowson, and a rent and other incorporeal hereditaments, an easement, right, privilege, or benefit on, over, or derived from land’. Land is 3D, can include things attached to the land such as trees and buildings. Land also has depth with regard to things like sewage systems for example. Land is not unlimited upwards to be extended exclusively because of things like planes for example. People want to know what they are getting when buying land and lawyers want to know what clients are expecting to receive. 3 stages: look, oral agreement, written contract, completion by deed and registration Fixtures and Fittings: Fixtures: things that are part of the land Fittings: things that are on the land but not part of it (remain chattels/ personal property (brought onto land by current owner, put there for some use) Two tests:

1. The degree of annexation test – the more firmly attached the object is to the land, the more likely it is to have become a fixture. If item is not attached to the land at all, it is very unlikely to have become a fixture 2. The purpose of annexation test – the more important text – why did the person who owned the land currently bring the object onto the land and attach it, what is it doing there. If the object has been attached for the land because that’s the only way to enjoy it as a chattel, it is likely to have remained a fitting. If it has been attached to the land in order to improve the land itself, to contribute to the architectural land, it is more likely to have become a fixture. Set out case that created test: Holland v Hodgson (1872) Traditional authority of the idea there are two tests that need to be applied ‘…articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land…and on the contrary, an article which is affixed even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel…’ per Blackburn J ***The more firmly and fixed and object is to land, the more likely it is to become a fixture – explain clearly and fully and then apply to facts at every stage. Do not assume knowledge, tell it*** Need to explain how it applies in existing cases: Dibble v Moore (1970) A greenhouse attached to land only by its own weight was regarded as only a fitting not a fixture. It wasn’t physically attached and on the second test there was no objective intention to make the greenhouse part of the land Berkeley v Poulett (1976) Pictures screwed on a wall, statue resting on own weight and sun dial. The CoA found that all three items remained fittings. There were removable without significant damage to the property and they were attached because that is how pictures are enjoyed. TAPESTRIES CASES: Leigh v Taylor (1902) The tapestry attached to the wall remained a chattel/fitting because the purpose of the attachment was to better enjoy said tapestry as an object D’Enycourt v Gregory (1866) – BEST AUTHORITY… If something is attached to land, or not attached to land, the really important question is whether it is part of the architectural design of the property. The tapestry had become fixtures and along with this there were heavy marble statues that rested on their own weight. The first part of the test would suggest they are just fittings, but the second part is that is has become an overall part of the architectural design Elitestone v Morris (1997) Bungalow firmly attached to the land but had no foundations and would have required demolition to remove it, like any normal, brick bungalow. It was part of the land in the HoL – would cause a lot of damage to remove it (1st test difficult to remove) and the objective purpose of bringing the bungalow onto the land was to use the land as a place to live, not to enjoy looking at the bungalow (2nd test)

Botham v TSB Bank (1997) Lord Justice Roch – gave guidelines of what is likely to have become a fixture and what is not (see ‘seminar one’ notes) Court emphasised in this case that the 2nd test is the most important one… brought on to better enjoy as chattels, or attached to improve the realty/ usage The next stage: The right to remove fixtures and fittings… when does the vendor have the right to remove an object from the property Fixtures: Pass with the land to the purchaser and cannot be removed by the vendor after contracts have been exchanged (S62.1) Unless… this has been made clear in the contact (S62.4) Fittings: These remain part of the property of the vendor so can be removed at any given time Taylor v Hamer (2003) CoA Generally thought to be an exception so only apply if there are facts exactly the same as this Vendor liable for removal of fixtures even before the contract had been exchanged but it was not fine because the purchaser specifically asked about flagstones and vendor seemed to imply they would be left

SCENARIO: Andrea agrees to sell her house to Brian. Upon completion Brian is annoyed to find that Andrea has removed a number of shrubs from the garden together with a stone seat that stood below the cherry tree and ornamental fountain. Andrea has also removed the oven, the microwave, the washing machine, the carpets, the radiators and the boiler from the kitchen. Advise Brian. Brian wants to know what he is and isn’t entitled to. Should there be something in the contract that makes this clear? In an ideal world, yes, so because not the first main issue that needs to then be addressed is are these objects fixtures or fittings? There needs to be a clarity of structure – start simply then become complex. Issue, law, facts , conclusion Brian can claim back the oven, washing machine, carpets, radiators and the boiler, but probably not the microwave. Regarding the garden objects, the stone seat and ornamental fountain are likely to be chattel, but probably not the shrubs because they are part of the ground.

Lecture 4 – estates and interests Tenure and Estates: The ‘radical title’ of the Crown Doctrine of tenure ‘Owning land’ is not straightforward – if we own it we hold one of two legal estates in land, freehold or leasehold – only hold an estate within the land

You hold an interest in the land for a period of time – could be forever if freehold, if leasehold has a maximum duration English land law feudal holding system developed after 1066 – all land belonged to King and he granted land to people in exchange for services – known as TENURE There were different types of tenure – system of tenure is no longer directly relevant to us Doctrine of estates – do not own land directly but hold/own one of two estates in land Two that are capable of being legal On-going sovereignty over the land in England that the crown possesses Law and Equity – dual system of legal rules Distinction between legal and equitable states and interests in land Dual system runs through development of land law and what is really important is that we need to understand the historical development of the two systems means there are some estates capable of being legal and there are others which are capable of being equitable – not very important to use anymore though Lots of different interests in land – mortgages, easements, freehold covenants – may also be legal or equitable – some may exist as being legal or some may exist in equity Rules of equity take priority Main differences between legal and equitable rights in land: Formalities Enforceability – better to have a legal version of property rights rather than equitable – more likely to enforce legal version

Law of Property Act 1925 S1 .1 2 legal estates .2 5 types of interest capable of being legal .3 equitable interests If created using correct formalities, capable of being legal If not, only equitable version Two legal estates in land – mortgage acquired capable of being legal, same as easements If only the creature of equity, interest like a restricted covenant is an equitable only interest

Property and human rights: Article 1 of Protocol 1 European Convention on Human Rights Article 8 European Convention on Human Rights Development of HR law has impacted on land law to some extent – relevant convention rights are article 1 which guarantees citizens protection from interference with peaceful enjoyment of their possessions and article 8 – right to respect for private and family life at home and article 6 – unlawful for public authority to act in a way incompatible with convention right To what extent can the C use Article 8 for loss of possession of their home even when they have no particular proprietary right in this??? Harrow LBC v Qazi (2004) C was seeking to resist housing authorities claim for possession of council house and tenancy was in name of his wife who gave notice to quit. Could he rely on article 8 in order to claim that he should be able to remain in property? McDonald v McDonald (2016)

Landlord was a private person. Could article 8 be relevant in such a situation? At one instance, no because it is only a public authority decision to be subject to judicial review

Claims to access private land for the purpose of protest Is this trespass? Or is it a legitimate exercise of freedom of expression under Article 10 ECHR? See Appleby v UK

Lecture 5 - leases Look at land law and how it functions with society Rules that help you decide if someone has a lease or a license and leasehold covenants – obligations of landlords and tenants in a lease Formalities for creating a lease and covenants in leases The Leasehold estate The lease or ‘term of years’ is one of the existing two estates in land that is capable of existing at law – LPA 1925 S1.1 The difference is that freehold is of unlimited duration, whereas leasehold is held for a maximum term The lease is an odd right because it has a double nature Contract – temporary and conditional use of land in return for payment Proprietary right – in the form of the leasehold estate Also a really important property interest in the last century When reading cases, depending on the approach the courts take influences what their answer will be It is a way of bringing a critique to some of this The lease is increasingly proprietary but there was a case called Burton v London & Quadrant Housing Trust (2000) Courts said they found a lease but it is n...