J.K.K. July 2023
Land Law – Black Letter Law
Nature of the Land
Legislation
Law of Property Act 1925 LPA
Land Registration Act 2002
HM Land Registry
Rights can be either personal or proprietary
Proprietary Rights in Land
Can be enforced by an action in rem (the use or possession of the land can be recovered)
The holder of the right does not have to settle for damages if they are deprived of their right
Capable of being enforced against a third party (not just the grantor of the right) – but it’s not automatically
enforceable
The holder of this right will have a right to occupy or use or restrict what can be done on the land in some
way
Examples
o Freehold & leasehold estate
o An easement
o A mortgage
o A restrictive covenant
o An estate contract
o A beneficial interest in a trust of land
BUT! Just because a particular use of land can have prop status does not mean that the actual right under
consideration will have prop status (you need to look at nature, creation and protection of rights)
Invisibility – you cannot see a mortgage/easement – they need to be registered however
Proprietary right of possession = estate in land
Is right proprietary or personal?
Fixed list?
Nature of the right
o Need substantive characteristics for a particular proprietary right?
Creation of the right
o Formalities – most prop rights are subject to reqs. If there is compliance with the reqs – right might
be prop.
Protection of a right – if a right is proprietary, is it enforceable against a third party? (i.e. a new owner of the
burdened land)
Personal Rights in Land
Enforced by a personal action for damages
Will bind only the original parties to the right
Estates in Land
Freehold – the highest possible estate in land
o Fee simple absolute in possession (only this is relevant and recognised at law!!!)
Fee – capable of being inherited
Simple – inherited by any heir (includes distant relatives)
Absolute – estate is not liable to end prematurely (not determinable or subject to a
condition)
, J.K.K. July 2023
In possession – fee simple owner has a current right to use and enjoyment of the property.
Physical possession is not necessary here and includes receiving rent.
o Right of possession which lasts until the owner for the time being dies without heirs
o Holder of the freehold = the landowner
o Since it is a form of property, the owner is free to sell it/give it away
OR: may grant away a lesser estate for a shorter period of possession (a lease)
Leasehold – when a freehold owner grants a lesser estate which is of certain duration
o Leaseholder – tenant – may grant a lease of a lesser duration – sub-lease (or underlease)
o This may continue for shorter and shorter periods
o Freehold reversion = the residue of the estate after the granting of a lease
o Leasehold reversion = when the grantor holds a leasehold estate
o When the lease ends the right reverts to the landlord
Hierarchy of rights of possession
o The same piece of land may be subject to freehold, lease, sub-lease etc.
Commonhold – a type of freehold // abolished
o Not a new estate in the land, but one created out of a freehold registered estate
o Designed to meet the needs of owners of flats or apartments and other properties where the
owners are interdependent on each other (e.g. retirement homes)
o Alternative to a long lease
o No overall landlord BUT freehold owner = commonhold association
o Owner of each flat – member of the association
Interests in Land
Proprietary rights of more limited use ('interests in land')
o Does not give the right to possess the land in the way an estate does
o Gives the interest holder the right to do something on the land, or restrict what can be done on the
land
o 'Incumbrances' – another word
If LPA s1 hasn't recognised a right as having prop status – it will only be personal in nature
o Legal interests
Mortgages
Easements granted for a term equivalent to a freehold or leasehold estate
- Proprietary right to use land which belongs to somebody else (storage/parking etc)
Rights of entry – only considered in the context of forfeiture!
- Right of landlord to re-enter premises, rentcharge (very uncommon) owner's right to
hold the land if money owed is not paid
o Equitable interests
Freehold covenants
- Restrictive covenant – a promise – prevent land owner from doing something on
their land (e.g. promise not to build on the land)
o Run with the land – automatically binding on successors
- Positive covenant – requirement to undertake a positive action, they do not run with
the land
- Hand in pocket test (if you have to spend money – positive, if you don’t – negative) –
you need to look beyond the phrase
Estate contracts
- Contractual right to a legal estate (either freehold or leasehold)
- E.g. contract to grant a lease, a right of pre-emption
Interests in a trust of land
- Beneficiary
- Can be created expressly and impliedly
Easements granted for an uncertain term
, J.K.K. July 2023
o Distinctions between legal & equitable interests
Remedies: legal interest will have a wider range
Enforcement of the interest
Transfer of a freehold/leasehold estate = conveyancing
Transferred by:
o Sale
o Gift
o Will
o Operation of law (owner died/bankrupt)
Legal formalities
o Exchange of contracts (but not legally required) – s2 LPA
In writing
Contains all terms
Signed by both parties
- Common practice – exchange contracts – two copies are drawn up and then they
exchange them
o Entering into a deed – doc must comply with the requirements:
Intended to be a deed
Validly executed (in presence of a witness who also signs their name)
Delivered
o Registration at the Land Registry
Compulsory land registration – if an unregistered land is being transferred
Land contracts
o Can’t do variations of material terms
Revise variations of land contracts further (if it's in the spec)
o Effect of a binding land contract: to pass an equitable interest in the land to the buyer (estate
contract)
o Application
Create a contractual right to a legal estate
- Option Agreement – gives another party a right, during the option period, to serve
notice that they wish to buy the land
If notice served during the option period, the seller must sell the land to the
buyer. Buyer not obliged.
- Right of pre-emption – right of first refusal in the event the land owner decided to
sell their land
o Proprietary effect of a land contract
The courts will recognise an equitable interest if there is an issue with the contract itself
To be binding on third party purchasers, an estate contract must be protected against third
parties
- A donee third party (who is gifted/inherits the land) will be bound by an estate
contract. A purchaser will only be bound if the estate contract has been properly
protected.
o Remedies for breach of land contract
Damages (common law remedy available as of law)
Specific performance (equitable)
- In order for land contract to be recognised as an equitable interest in the land, the
claimant must have clean hands (the contracts must be capable of specific
performance)
Injunction (equitable)
, J.K.K. July 2023
Land Registration
Registered land
o Advantages – transparency & certainty
Each title has a title plan – necessary information provided
Copy of the title can be easily accessible through Land Registry
State guarantee
Speeds up conveyancing
Unregistered land – title information contained in various old paper title deeds
o Disadvantages
Difficult to discover third party interests
No state guarantee of accuracy/compensation for error
Slower, more expensive process for the purchaser
Reading ancient documents might be difficult
You don’t have to register an unregistered title – only when there is a transaction/event triggers
compulsory registration
o First registration
o Also exists voluntary registration of unregistered land (reduced fees)
o 'Triggering events' – either triggers registration or updating the register
Transfer of the freehold estate by sale/gift/court order
Lease of more than 7 years
First legal mortgage of the freehold
Principles of registration
o Simple rule: a buyer should be bound only by third party interests already entered on the register at
the time of sale (regardless legal/equitable, regardless whether B knows abt the interest)
o Mirror principle
Register should reflect all matters
Never fully realised bcos overriding interests
- Interest that does not appear on the register but will still be binding on the owner of
the legal estate and any buyer of it
o Curtain principle
The equitable information is kept off the title if the property is held on trust
o Insurance principle
Accuracy of the register is guaranteed by the state
Compensation – 'state indemnity'
Registered title – title plan
o Unique title number
o Details of the landowner
o Rights that benefit/burden a piece of land are recorded
Property Rights
Proprietorship register – any restrictions on the owner e.g. mortgage restriction
Charges Register – burdens on the right, restrictive covenants, easements, leases
o Official Copy = the LR registered title documents
o Overriding interests will not appear on the title (short leases e.g. do not need to be registered)
Proprietorship register: classes of title
o Absolute – best form
o Qualified – title has some defect
o Good Leasehold – the title of leaseholder only (not freeholder)
o Possessory – 'Adverse Possession' or 'Squatters Rights'
Failure to register = transaction not legally recognised
Land Law – Black Letter Law
Nature of the Land
Legislation
Law of Property Act 1925 LPA
Land Registration Act 2002
HM Land Registry
Rights can be either personal or proprietary
Proprietary Rights in Land
Can be enforced by an action in rem (the use or possession of the land can be recovered)
The holder of the right does not have to settle for damages if they are deprived of their right
Capable of being enforced against a third party (not just the grantor of the right) – but it’s not automatically
enforceable
The holder of this right will have a right to occupy or use or restrict what can be done on the land in some
way
Examples
o Freehold & leasehold estate
o An easement
o A mortgage
o A restrictive covenant
o An estate contract
o A beneficial interest in a trust of land
BUT! Just because a particular use of land can have prop status does not mean that the actual right under
consideration will have prop status (you need to look at nature, creation and protection of rights)
Invisibility – you cannot see a mortgage/easement – they need to be registered however
Proprietary right of possession = estate in land
Is right proprietary or personal?
Fixed list?
Nature of the right
o Need substantive characteristics for a particular proprietary right?
Creation of the right
o Formalities – most prop rights are subject to reqs. If there is compliance with the reqs – right might
be prop.
Protection of a right – if a right is proprietary, is it enforceable against a third party? (i.e. a new owner of the
burdened land)
Personal Rights in Land
Enforced by a personal action for damages
Will bind only the original parties to the right
Estates in Land
Freehold – the highest possible estate in land
o Fee simple absolute in possession (only this is relevant and recognised at law!!!)
Fee – capable of being inherited
Simple – inherited by any heir (includes distant relatives)
Absolute – estate is not liable to end prematurely (not determinable or subject to a
condition)
, J.K.K. July 2023
In possession – fee simple owner has a current right to use and enjoyment of the property.
Physical possession is not necessary here and includes receiving rent.
o Right of possession which lasts until the owner for the time being dies without heirs
o Holder of the freehold = the landowner
o Since it is a form of property, the owner is free to sell it/give it away
OR: may grant away a lesser estate for a shorter period of possession (a lease)
Leasehold – when a freehold owner grants a lesser estate which is of certain duration
o Leaseholder – tenant – may grant a lease of a lesser duration – sub-lease (or underlease)
o This may continue for shorter and shorter periods
o Freehold reversion = the residue of the estate after the granting of a lease
o Leasehold reversion = when the grantor holds a leasehold estate
o When the lease ends the right reverts to the landlord
Hierarchy of rights of possession
o The same piece of land may be subject to freehold, lease, sub-lease etc.
Commonhold – a type of freehold // abolished
o Not a new estate in the land, but one created out of a freehold registered estate
o Designed to meet the needs of owners of flats or apartments and other properties where the
owners are interdependent on each other (e.g. retirement homes)
o Alternative to a long lease
o No overall landlord BUT freehold owner = commonhold association
o Owner of each flat – member of the association
Interests in Land
Proprietary rights of more limited use ('interests in land')
o Does not give the right to possess the land in the way an estate does
o Gives the interest holder the right to do something on the land, or restrict what can be done on the
land
o 'Incumbrances' – another word
If LPA s1 hasn't recognised a right as having prop status – it will only be personal in nature
o Legal interests
Mortgages
Easements granted for a term equivalent to a freehold or leasehold estate
- Proprietary right to use land which belongs to somebody else (storage/parking etc)
Rights of entry – only considered in the context of forfeiture!
- Right of landlord to re-enter premises, rentcharge (very uncommon) owner's right to
hold the land if money owed is not paid
o Equitable interests
Freehold covenants
- Restrictive covenant – a promise – prevent land owner from doing something on
their land (e.g. promise not to build on the land)
o Run with the land – automatically binding on successors
- Positive covenant – requirement to undertake a positive action, they do not run with
the land
- Hand in pocket test (if you have to spend money – positive, if you don’t – negative) –
you need to look beyond the phrase
Estate contracts
- Contractual right to a legal estate (either freehold or leasehold)
- E.g. contract to grant a lease, a right of pre-emption
Interests in a trust of land
- Beneficiary
- Can be created expressly and impliedly
Easements granted for an uncertain term
, J.K.K. July 2023
o Distinctions between legal & equitable interests
Remedies: legal interest will have a wider range
Enforcement of the interest
Transfer of a freehold/leasehold estate = conveyancing
Transferred by:
o Sale
o Gift
o Will
o Operation of law (owner died/bankrupt)
Legal formalities
o Exchange of contracts (but not legally required) – s2 LPA
In writing
Contains all terms
Signed by both parties
- Common practice – exchange contracts – two copies are drawn up and then they
exchange them
o Entering into a deed – doc must comply with the requirements:
Intended to be a deed
Validly executed (in presence of a witness who also signs their name)
Delivered
o Registration at the Land Registry
Compulsory land registration – if an unregistered land is being transferred
Land contracts
o Can’t do variations of material terms
Revise variations of land contracts further (if it's in the spec)
o Effect of a binding land contract: to pass an equitable interest in the land to the buyer (estate
contract)
o Application
Create a contractual right to a legal estate
- Option Agreement – gives another party a right, during the option period, to serve
notice that they wish to buy the land
If notice served during the option period, the seller must sell the land to the
buyer. Buyer not obliged.
- Right of pre-emption – right of first refusal in the event the land owner decided to
sell their land
o Proprietary effect of a land contract
The courts will recognise an equitable interest if there is an issue with the contract itself
To be binding on third party purchasers, an estate contract must be protected against third
parties
- A donee third party (who is gifted/inherits the land) will be bound by an estate
contract. A purchaser will only be bound if the estate contract has been properly
protected.
o Remedies for breach of land contract
Damages (common law remedy available as of law)
Specific performance (equitable)
- In order for land contract to be recognised as an equitable interest in the land, the
claimant must have clean hands (the contracts must be capable of specific
performance)
Injunction (equitable)
, J.K.K. July 2023
Land Registration
Registered land
o Advantages – transparency & certainty
Each title has a title plan – necessary information provided
Copy of the title can be easily accessible through Land Registry
State guarantee
Speeds up conveyancing
Unregistered land – title information contained in various old paper title deeds
o Disadvantages
Difficult to discover third party interests
No state guarantee of accuracy/compensation for error
Slower, more expensive process for the purchaser
Reading ancient documents might be difficult
You don’t have to register an unregistered title – only when there is a transaction/event triggers
compulsory registration
o First registration
o Also exists voluntary registration of unregistered land (reduced fees)
o 'Triggering events' – either triggers registration or updating the register
Transfer of the freehold estate by sale/gift/court order
Lease of more than 7 years
First legal mortgage of the freehold
Principles of registration
o Simple rule: a buyer should be bound only by third party interests already entered on the register at
the time of sale (regardless legal/equitable, regardless whether B knows abt the interest)
o Mirror principle
Register should reflect all matters
Never fully realised bcos overriding interests
- Interest that does not appear on the register but will still be binding on the owner of
the legal estate and any buyer of it
o Curtain principle
The equitable information is kept off the title if the property is held on trust
o Insurance principle
Accuracy of the register is guaranteed by the state
Compensation – 'state indemnity'
Registered title – title plan
o Unique title number
o Details of the landowner
o Rights that benefit/burden a piece of land are recorded
Property Rights
Proprietorship register – any restrictions on the owner e.g. mortgage restriction
Charges Register – burdens on the right, restrictive covenants, easements, leases
o Official Copy = the LR registered title documents
o Overriding interests will not appear on the title (short leases e.g. do not need to be registered)
Proprietorship register: classes of title
o Absolute – best form
o Qualified – title has some defect
o Good Leasehold – the title of leaseholder only (not freeholder)
o Possessory – 'Adverse Possession' or 'Squatters Rights'
Failure to register = transaction not legally recognised
