LAND LAW NOTES
CONTENTS
Introduction to land law 1
Transfer of land 23
Land Registration 34
Adverse Possession 53
Leases 68
Mortgages 82
Easements 98
Freehold covenants 117
Co-ownership 135
INTRODUCTION TO LAND LAW
Land law Chris Bevan chapter 1 introduction to land law
Special features of land; what makes land special?
1. Permanence
Because it is permanent and fixed, this permanency gives land stability, durability
and longevity meaning that dealing with land is secure, long term and requires
commitment. Investment in land is also commonly perceived as a safe option
because of this. A key feature of land’s permanence is our ability to manage it, we
can hold land for ourselves but also pass it down to next generations of heirs of land,
1
, or pass on to others for their use. Land’s enjoyment can also be split, for example if
you own a house, but decide to rent it out to somebody else.
2. Limited supply - Land is in limited supply
Because land is a finite resource, there is finite supply. Land cannot be
manufactured if there is a shortage as you can with cars for example because it
already physically exists – on the earth. This limited availability makes land valuable,
expensive and in demand, meaning that most of us aspire to own land, albeit with
the help of a mortgage from the bank. For land lawyers, limited supply of land means
that land must be freed up or made available to be marketable so that its maximum
potential can be achieved. Land lawyers want land to be unlocked, without
encumbrances and not constrained.
3. Connectivity - Land is connected
A parcel of land never exists in isolation. Almost every time it is connected to
another piece of land or more, meaning that understanding the rights and
obligations in relation to operating on land often involves considering the rights of
adjoining land-owners. The interconnectedness and disputes involving adjoining
plots of land are therefore an unavoidable and inevitable feature of dealing with
land.
4. Uniqueness - Land is unique
Each piece or plot of land is distinct from one another, a one-off; ultimately
rendering it expensive. Even two seemingly identical plots of land will be different in
the essence of some unique feature or physical place which no other parcel of land
shares. This is why property shows where people look for a house are so interesting
– they are based upon the uniqueness of each house, each having its own magical
imprint. The distinctiveness of land can create a personal attachment which makes
deprivation of that land in form of repossession or eviction for example, a difficult
pill to swallow. This leads to bitter legal disputes which must be resolved by land law
and land lawyers. Uniqueness is also a price inflator.
5. Social and economic importance- land is socially and economically important
Billions of pounds are loaned to businesses and individuals in the UK to purchase
land. This means land is one of the vital pillars which supports the British economy.
Evidence of this economic importance is found in the media concerns for example
within housing bubbles of rising house prices (a housing bubble occurs where land
prices rise inexorably and thus do house prices in a manner that is unsustainable and
ultimately the bubble ‘bursts’ as prices decline), and also within the concerns of
irresponsible mortgage lending to see that land is a key protagonist and factor in
our economy’s rise and fall. Land is also socially important, and land is much more
than the sods on earth that comprise it – let’s consider the purchase of a property as
a home. Socially, land gives us somewhere to live, build a family, somewhere to be
active citizens – it provides a blank canvas against which we shape it to adapt to our
lives and business as it becomes our ‘home’.
2
, 6. Capacity to support multiple interests – land is capable of supporting multiple
interests
This is land’s show-piece, but also the source of most disputes over it. Land is able
to sustain simultaneous, multiple uses and interests. For example : Mia buys a parcel
of land but cannot afford the full asking price. She therefore takes out a mortgage
loan. In return for the loan, the bank enjoys interest in the land. Imagine that when
Mia purchases the land, she promises the neighbours that she will not run a business
from the site. She gives another, separate neighbour – Ben - the right to walk over
her land and park his car. Finally, she rents out part of her remaining land to Cai who
becomes her tenant. Mia, the bank, Ben and Cai all have rights concerning the use of
land. The law surrounding land allows these rights to coexist simultaneously,
maximising the use-value of the land. However, with multiple interests come risks.
Chief among them is what we land lawyers call the ‘enforceability’ or ‘priority’
question. In other words, whose interest wins? Who takes priority when a dispute
arises between these competing claims? It is the question of enforceability and
priority between the right-holders that is the very essence of land law.
Land’s special features above mean that a body of rules has been developed around
it: this makes up land law.
The Scope of Contemporary Land Law: What is Land Law?
English law draws a distinction between ‘real’ and ‘personal’ property. In simple terms, real
property consists of land, whilst personal property is all other property that is not land. Land
law is the law concerning ‘real property’ or ‘realty’ rather than 'personal property’ or
‘personality’. Basically, real property or realty/ real estate is land/houses. Personal property
refers to possessions more so such as cars, phones etc. and other moveable property. A
judgment in money can be called personal because it gives the victorious claimant no right
in or to any particular thing but merely a right that a person, the defeated person, pay the
sum in question. In some actions you may recover the thing in itself, these actions are called
‘real actions, ‘real’ meaning ‘thing related’ in the simplest sense that the person claiming
would recover the very thing claimed. The subject matter or real actions then became real
property. ASK TO CLARIFY IN SEMINAR.
Land law is the law of real property. It is the part of the general law that governs the
allocation of rights and responsibilities in relation to ‘real’ or ‘immovable’ property. The
word ‘real’ indicates that we are concerned with rights in rem (Latin for rights in the thing).
The distinction between real/personal property is ancient and historically described as the
nature of the remedy available when legal proceedings are brought : an action in rem,
involved seeking (I.e. return) of the land, for example, where the true owner had been
dispossessed. In contrast, an action in personam consisted of an action against a wrongdoer
personally, and for which the remedy would be compensation in the form of damages.
Today, this real/personal distinction endures but represents largely a historical overhang
from the early development of the law. Most of the rights we encounter in this
book/module are regarded as real property as they would have been protected by actions
in rem.
Land law is about rights in things, or, in order words, rights in the land rather than rights
which are merely personal to the people who created them. But land is also about
3
, responsibilities and relationships. Land does not exist in a vacuum and land law must also be
regarded as the body of law governing the relationship between the thing and the owner of
that thing. More specifically, land law creates a framework in which a variety of
relationships between people and land can operate. Land law is concerned with the nature,
creation and protection of rights in land and, also the content of those rights. What rights do
you have if you rent a parcel of land? If the land is disposed of without your consent, what
forms of redress do you have? How can you protect your position? These are all questions
to which land law attempts to provide answers for.
What is Land?
The traditional starting point for the definition of land is found within s205(1)(ix) of the Law
of Property Act 1925 (LPA 1925) which provides that:
“ '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 in- corporeal hereditaments, and
an easement, right, privilege, or benefit in, over, or derived from land. “
Section 205 above offers a confounding statutory definition but it serves a vital function. It
tells us that land law is about more than just physical, tangible property such as trees and
coal (so-called incorporeal hereditaments). These intangible rights are those which are not
necessarily visible on the land but are extremely important, and include such rights as
leases, easements, covenants and mortgages. Land, under s205, is defined as including
both the physical aspects of land as well as those rights of enjoyment of land that cannot be
seen. When we talk of ‘land’ – what do we mean and what does ‘land’ include?
The Expansive meaning of land CONTINUE FROM PG 6
At common law, the very old sixteenth century maxim sums up the breadth of
interpretation given to land – ‘cuiuc est solum, eius est usque ad coelom ad inferos’
translating to ‘the owner of the soil also owns everything up to the sky and down to the
centre of the earth’, meaning that land involves s much more than just rights at surface
level. How far upwards and downwards does this ownership extend to? The extent of your
rights have been delimited and qualified by both common law developments and statutory
intervention.
Land comprises…
Airspace – it has never been the case that an owner of land owns the entire airspace
above into the heavens. The common law has long distinguished between two
different strata” the lower stratum and the upper stratum. The lower stratum refers
to the airspace ’to such a height as is necessary for the ordinary use and enjoyment
off…land and the structures upon it.’ The upper stratum refers to the airspace above
this height. A landowner’s rights are limited to those of the lower stratum. S76 of the
4
CONTENTS
Introduction to land law 1
Transfer of land 23
Land Registration 34
Adverse Possession 53
Leases 68
Mortgages 82
Easements 98
Freehold covenants 117
Co-ownership 135
INTRODUCTION TO LAND LAW
Land law Chris Bevan chapter 1 introduction to land law
Special features of land; what makes land special?
1. Permanence
Because it is permanent and fixed, this permanency gives land stability, durability
and longevity meaning that dealing with land is secure, long term and requires
commitment. Investment in land is also commonly perceived as a safe option
because of this. A key feature of land’s permanence is our ability to manage it, we
can hold land for ourselves but also pass it down to next generations of heirs of land,
1
, or pass on to others for their use. Land’s enjoyment can also be split, for example if
you own a house, but decide to rent it out to somebody else.
2. Limited supply - Land is in limited supply
Because land is a finite resource, there is finite supply. Land cannot be
manufactured if there is a shortage as you can with cars for example because it
already physically exists – on the earth. This limited availability makes land valuable,
expensive and in demand, meaning that most of us aspire to own land, albeit with
the help of a mortgage from the bank. For land lawyers, limited supply of land means
that land must be freed up or made available to be marketable so that its maximum
potential can be achieved. Land lawyers want land to be unlocked, without
encumbrances and not constrained.
3. Connectivity - Land is connected
A parcel of land never exists in isolation. Almost every time it is connected to
another piece of land or more, meaning that understanding the rights and
obligations in relation to operating on land often involves considering the rights of
adjoining land-owners. The interconnectedness and disputes involving adjoining
plots of land are therefore an unavoidable and inevitable feature of dealing with
land.
4. Uniqueness - Land is unique
Each piece or plot of land is distinct from one another, a one-off; ultimately
rendering it expensive. Even two seemingly identical plots of land will be different in
the essence of some unique feature or physical place which no other parcel of land
shares. This is why property shows where people look for a house are so interesting
– they are based upon the uniqueness of each house, each having its own magical
imprint. The distinctiveness of land can create a personal attachment which makes
deprivation of that land in form of repossession or eviction for example, a difficult
pill to swallow. This leads to bitter legal disputes which must be resolved by land law
and land lawyers. Uniqueness is also a price inflator.
5. Social and economic importance- land is socially and economically important
Billions of pounds are loaned to businesses and individuals in the UK to purchase
land. This means land is one of the vital pillars which supports the British economy.
Evidence of this economic importance is found in the media concerns for example
within housing bubbles of rising house prices (a housing bubble occurs where land
prices rise inexorably and thus do house prices in a manner that is unsustainable and
ultimately the bubble ‘bursts’ as prices decline), and also within the concerns of
irresponsible mortgage lending to see that land is a key protagonist and factor in
our economy’s rise and fall. Land is also socially important, and land is much more
than the sods on earth that comprise it – let’s consider the purchase of a property as
a home. Socially, land gives us somewhere to live, build a family, somewhere to be
active citizens – it provides a blank canvas against which we shape it to adapt to our
lives and business as it becomes our ‘home’.
2
, 6. Capacity to support multiple interests – land is capable of supporting multiple
interests
This is land’s show-piece, but also the source of most disputes over it. Land is able
to sustain simultaneous, multiple uses and interests. For example : Mia buys a parcel
of land but cannot afford the full asking price. She therefore takes out a mortgage
loan. In return for the loan, the bank enjoys interest in the land. Imagine that when
Mia purchases the land, she promises the neighbours that she will not run a business
from the site. She gives another, separate neighbour – Ben - the right to walk over
her land and park his car. Finally, she rents out part of her remaining land to Cai who
becomes her tenant. Mia, the bank, Ben and Cai all have rights concerning the use of
land. The law surrounding land allows these rights to coexist simultaneously,
maximising the use-value of the land. However, with multiple interests come risks.
Chief among them is what we land lawyers call the ‘enforceability’ or ‘priority’
question. In other words, whose interest wins? Who takes priority when a dispute
arises between these competing claims? It is the question of enforceability and
priority between the right-holders that is the very essence of land law.
Land’s special features above mean that a body of rules has been developed around
it: this makes up land law.
The Scope of Contemporary Land Law: What is Land Law?
English law draws a distinction between ‘real’ and ‘personal’ property. In simple terms, real
property consists of land, whilst personal property is all other property that is not land. Land
law is the law concerning ‘real property’ or ‘realty’ rather than 'personal property’ or
‘personality’. Basically, real property or realty/ real estate is land/houses. Personal property
refers to possessions more so such as cars, phones etc. and other moveable property. A
judgment in money can be called personal because it gives the victorious claimant no right
in or to any particular thing but merely a right that a person, the defeated person, pay the
sum in question. In some actions you may recover the thing in itself, these actions are called
‘real actions, ‘real’ meaning ‘thing related’ in the simplest sense that the person claiming
would recover the very thing claimed. The subject matter or real actions then became real
property. ASK TO CLARIFY IN SEMINAR.
Land law is the law of real property. It is the part of the general law that governs the
allocation of rights and responsibilities in relation to ‘real’ or ‘immovable’ property. The
word ‘real’ indicates that we are concerned with rights in rem (Latin for rights in the thing).
The distinction between real/personal property is ancient and historically described as the
nature of the remedy available when legal proceedings are brought : an action in rem,
involved seeking (I.e. return) of the land, for example, where the true owner had been
dispossessed. In contrast, an action in personam consisted of an action against a wrongdoer
personally, and for which the remedy would be compensation in the form of damages.
Today, this real/personal distinction endures but represents largely a historical overhang
from the early development of the law. Most of the rights we encounter in this
book/module are regarded as real property as they would have been protected by actions
in rem.
Land law is about rights in things, or, in order words, rights in the land rather than rights
which are merely personal to the people who created them. But land is also about
3
, responsibilities and relationships. Land does not exist in a vacuum and land law must also be
regarded as the body of law governing the relationship between the thing and the owner of
that thing. More specifically, land law creates a framework in which a variety of
relationships between people and land can operate. Land law is concerned with the nature,
creation and protection of rights in land and, also the content of those rights. What rights do
you have if you rent a parcel of land? If the land is disposed of without your consent, what
forms of redress do you have? How can you protect your position? These are all questions
to which land law attempts to provide answers for.
What is Land?
The traditional starting point for the definition of land is found within s205(1)(ix) of the Law
of Property Act 1925 (LPA 1925) which provides that:
“ '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 in- corporeal hereditaments, and
an easement, right, privilege, or benefit in, over, or derived from land. “
Section 205 above offers a confounding statutory definition but it serves a vital function. It
tells us that land law is about more than just physical, tangible property such as trees and
coal (so-called incorporeal hereditaments). These intangible rights are those which are not
necessarily visible on the land but are extremely important, and include such rights as
leases, easements, covenants and mortgages. Land, under s205, is defined as including
both the physical aspects of land as well as those rights of enjoyment of land that cannot be
seen. When we talk of ‘land’ – what do we mean and what does ‘land’ include?
The Expansive meaning of land CONTINUE FROM PG 6
At common law, the very old sixteenth century maxim sums up the breadth of
interpretation given to land – ‘cuiuc est solum, eius est usque ad coelom ad inferos’
translating to ‘the owner of the soil also owns everything up to the sky and down to the
centre of the earth’, meaning that land involves s much more than just rights at surface
level. How far upwards and downwards does this ownership extend to? The extent of your
rights have been delimited and qualified by both common law developments and statutory
intervention.
Land comprises…
Airspace – it has never been the case that an owner of land owns the entire airspace
above into the heavens. The common law has long distinguished between two
different strata” the lower stratum and the upper stratum. The lower stratum refers
to the airspace ’to such a height as is necessary for the ordinary use and enjoyment
off…land and the structures upon it.’ The upper stratum refers to the airspace above
this height. A landowner’s rights are limited to those of the lower stratum. S76 of the
4
