The Nature of Land
Glossary
• Freehold: Fee simple absolute in possession.
• Leasehold: Term of years absolute.
• Estate contract: A contract to convey or create a legal interest including an
option to purchase. During the interval of contract exchange (stage 1) and seller
transferring the property (stage 2) to the buyer, the estate contract is an equitable
interest.
• Option: An option enables the owner of the option to insist that the land is sold
to them at any time during the fixed period of the option, must not exceed 21
years. An option fee is usually payable, but the full purchase price only becomes
payable if the option is exercised.
• Home right: This is a statutory right for a non-owning spouse or civil partner to
occupy the matrimonial home under Family Law Act 1996. It does not create an
interest in land.
• Alienation: The sale or underletting of leasehold land.
• Assignment: The transfer or sale of a lease between the tenant/lessee (an
assignor) and a purchaser (an assignee).
• Conveyance: A document transferring legal ownership in freehold unregistered
land.
• Dominant land: The land that benefits from a restrictive covenant or easement.
• Positive Covenant: An obligation which requires effort or expenditure to perform
the obligation.
• Puisne mortgage: A legal mortgage over unregistered land which is not
protected by the deposit of title deeds.
• Reversion: When the owner of the freehold estate creates a leasehold estate
the freeholder retains their freehold estate and right to receive rent and sell the
freehold estate.
• Servient land: Land which is subject to or burdened by the covenant or
easement. The easements are exercised over this land. The servient land is
bound by the restrictive covenant.
What is Land?
s.205(1)(ix) of the Law of Property Act 1925: ‘“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 (things that we can touch and feel with
our senses, e.g., trees, rock); also … incorporeal hereditaments (things that can
neither be handled nor felt, e.g., profits, easements), a manor and advowson
(reflects the feudal nature of the development of land law and have limited modern
application) and an easement, right, privilege, or benefit in, over, or derived
from land; and “mines and minerals” …; and “hereditament” means any real
property which on an intestacy occurring before the commencement of this Act might
have devolved upon an heir.’
,• Airspace: A landowner’s air space is restricted to such a height as necessary
for him to enjoy in an ordinary way the land that he owns and the structures that
are placed upon it (Bernstein of Leigh (Baron) v Skyviews & General Ltd).
• Into the Ground: This case and the Infrastructure Act 2015 confirmed that a land
owner has control of their land to a depth of 300 metres, and permission is
needed to go further down (Bocado SA v Star Energy UK Onshore Ltd).
Fixtures or Chattels
When you attach an object to land e.g., shelves or cupboards, it converts from a
chattel to a fixture.
• A fixture is treated as though it is part of the land to which it is attached and forms
part of the purchase price of the property. Fixture cannot be removed by seller
unless permitted by an express term in the contract.
• A chattel is separate from the land and can be removed at any time.
Two-Part Tests (Berkley v Poulett)
Test 1: The Degree of Annexation
• If the object cannot be removed without causing significant damage, this raises
a rebuttable presumption that it is a fixture (Buckland v Butterfield).
• Free-standing items are presumed to be chattels and if an item can be removed
with ease, it is arguably a chattel (Dibble v Moore).
• These presumptions are rebuttable by test 2.
Test 2: The Purpose of Annexation (Key Test)
• If the object was attached to the land to enhance the land, form part of an
architectural design, or to create a permanent improvement, then it is a fixture.
Even an object resting on the ground by its own weight alone can be a fixture if
the purpose of placing it there was to enhance the land (D’Eyncourt v Gregory;
Leigh v Taylor).
• If the object was attached to the land for the better enjoyment of the object then
it retains its characteristic as a chattel.
Case Examples
• D’Eyncourt v Gregory (fixture): Tapestries fixed into panelled walls, pictures,
marble vases and garden ornaments were held to be fixtures despite their ease
of removal because they were an overall architectural design.
• Leigh v Taylor (chattel): Tapestries never lost their character as chattels and
was held that they could only be enjoyed in this way. Stretched over canvas and
tacked to a framework of wood nailed to the wall.
• Elitestone Ltd v Morris and Another (fixture): Freestanding bungalow and
garden shed or greenhouse on concrete blocks set into the ground was held to
be part of land. A house that is constructed so as to be moveable remain a
chattel. In this case the greenhouse could not be moved without destruction, so
it is a fixture.
,• TSB Bank Plc v Botham: fitted carpets, curtains, light fittings, gas fires
connected by a gas pipe were all chattels. Fitted kitchen units were fixtures.
Bathroom fittings are fixtures as without them the room would not function as a
bathroom.
Estates in Land
Only certain property rights can be legal, but all property rights are capable of being
equitable. Third parties can have rights over an estate. These can be legal,
equitable or statutory right.
• A right can be legal it if appears in ss.1(1) and 1(2) LPA 1925 and meets the
necessary formalities.
• Anything that falls outside the list in ss.1(1) and 1(2) LPA 1925 can only be
equitable and equitable interests must also meet the necessary formalities.
• It is possible to have two legal estates in the same piece of land at the same
time e.g., landlord with a freehold estate and tenant with the leasehold estate.
Estates (s.1(1)) LPA 1925) and interest (legal and equitable) can be divided into:
• Ownership of the Land: Freehold and Leasehold.
• Owned by someone else (third party): Lease, Mortgage, Restrictive Covenant,
Easement, Option, Profits, Estate Contract, Beneficial interest under a trust
(express or implied).
Capable of Being Legal
Capable of being legal, s.1(1) LPA 1925:
• The estate in fee simple absolute in possession (freehold).
• The term of years absolute (leasehold).
Freehold:
• Fee: Capable of being inherited.
• Simple: Can pass to any class of heir.
• Absolute: The estate is not determinable or conditional on any event.
• In possession: Immediate right to possession.
Leasehold:
• Tenant is granted exclusive possession of land for a fixed period.
• A term of years s.205(1) LPA 1925: A term for less than a year, or for a year or
years, and a fraction of a year or from year to year.
• Two types of leases: Fixed Term or Periodic.
• Fixed Term Leases: The lease can be for any period, provided the maximum
duration is certain.
• Periodic Leases: A lease for one period, a fixed period, which goes on
extending itself automatically until either the landlord or tenant terminates the
lease by notice. Notice to quit would usually be for the period of tenancy.
Commonhold (The Commonhold and Leasehold Reform Act 2002)
, • This form of tenure gives a buyer a freehold interest in their flat or house with
communal areas being managed by a common hold association run by
commonhold owners.
Interests in Land Capable of Being Legal, s.1(2) LPA 1925:
• Easements: A right of one landowner to make use of another nearby piece of
land for the benefit of their own land, e.g., right of way.
• Profits: A right to go on somebody else’s land and take from that land something
which exists naturally, e.g., right to fish or right to graze cattle.
Only easement and profits lasting forever or for a fixed duration are capable of
being legal i.e., uncertain duration means not capable of being legal, for a life time
is not forever.
• Rent charges: Right to receive a periodic payment charged on the land.
Capable of being legal if they are perpetual (i.e., forever) or for a term of
years absolute (i.e., for a fixed duration).
• Charges by way of legal mortgage: An interest over property granted by the
borrower to the lender as security for a debt or the discharge of some other
obligation.
• Interest in land which arise by operation of statute: Rights arise against a
piece of land by operation of an Act of Parliament. E.g., the charge for inheritance
tax or legal aid.
• Right of entry:
o A landlord’s right to forfeit the lease if the tenant breaks the terms of the lease.
OR
o A rentcharge owner’s right to reclaim the land if money owed is not paid.
Equitable
s.1(3) LPA 1925: This covers all other interests that can only be equitable. E.g.,
restrictive covenant, estate contracts (options or equitable lease), beneficial
interests, trusts (express or implied), or equitable easement (uncertain period).
Equitable property can be created in several ways.:
• Estate Contract: Contract to create or transfer a legal estate or interest.
• Trying to grant a legal estate or interest but failing to comply with the relevant
formalities.
• By grant of an estate or interest by a person who owns only an equitable right.
• By grant of an estate or interest which can only exists in equity.
• Equitable interest under a Trust: Express Trust or Implied Trust.
Express Trust:
• Legal owner who creates the express trust is the settlor.
• Defining characteristic: Trustee holds the legal title, freehold or leasehold.
Beneficiary holds beneficial interest. Equity intervened to protect the beneficiary
through the device of a trust.
• Self-declaration: Settlor retains the legal title to their property but declares that
they hold the property as trustee for the benefit of another person.
Glossary
• Freehold: Fee simple absolute in possession.
• Leasehold: Term of years absolute.
• Estate contract: A contract to convey or create a legal interest including an
option to purchase. During the interval of contract exchange (stage 1) and seller
transferring the property (stage 2) to the buyer, the estate contract is an equitable
interest.
• Option: An option enables the owner of the option to insist that the land is sold
to them at any time during the fixed period of the option, must not exceed 21
years. An option fee is usually payable, but the full purchase price only becomes
payable if the option is exercised.
• Home right: This is a statutory right for a non-owning spouse or civil partner to
occupy the matrimonial home under Family Law Act 1996. It does not create an
interest in land.
• Alienation: The sale or underletting of leasehold land.
• Assignment: The transfer or sale of a lease between the tenant/lessee (an
assignor) and a purchaser (an assignee).
• Conveyance: A document transferring legal ownership in freehold unregistered
land.
• Dominant land: The land that benefits from a restrictive covenant or easement.
• Positive Covenant: An obligation which requires effort or expenditure to perform
the obligation.
• Puisne mortgage: A legal mortgage over unregistered land which is not
protected by the deposit of title deeds.
• Reversion: When the owner of the freehold estate creates a leasehold estate
the freeholder retains their freehold estate and right to receive rent and sell the
freehold estate.
• Servient land: Land which is subject to or burdened by the covenant or
easement. The easements are exercised over this land. The servient land is
bound by the restrictive covenant.
What is Land?
s.205(1)(ix) of the Law of Property Act 1925: ‘“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 (things that we can touch and feel with
our senses, e.g., trees, rock); also … incorporeal hereditaments (things that can
neither be handled nor felt, e.g., profits, easements), a manor and advowson
(reflects the feudal nature of the development of land law and have limited modern
application) and an easement, right, privilege, or benefit in, over, or derived
from land; and “mines and minerals” …; and “hereditament” means any real
property which on an intestacy occurring before the commencement of this Act might
have devolved upon an heir.’
,• Airspace: A landowner’s air space is restricted to such a height as necessary
for him to enjoy in an ordinary way the land that he owns and the structures that
are placed upon it (Bernstein of Leigh (Baron) v Skyviews & General Ltd).
• Into the Ground: This case and the Infrastructure Act 2015 confirmed that a land
owner has control of their land to a depth of 300 metres, and permission is
needed to go further down (Bocado SA v Star Energy UK Onshore Ltd).
Fixtures or Chattels
When you attach an object to land e.g., shelves or cupboards, it converts from a
chattel to a fixture.
• A fixture is treated as though it is part of the land to which it is attached and forms
part of the purchase price of the property. Fixture cannot be removed by seller
unless permitted by an express term in the contract.
• A chattel is separate from the land and can be removed at any time.
Two-Part Tests (Berkley v Poulett)
Test 1: The Degree of Annexation
• If the object cannot be removed without causing significant damage, this raises
a rebuttable presumption that it is a fixture (Buckland v Butterfield).
• Free-standing items are presumed to be chattels and if an item can be removed
with ease, it is arguably a chattel (Dibble v Moore).
• These presumptions are rebuttable by test 2.
Test 2: The Purpose of Annexation (Key Test)
• If the object was attached to the land to enhance the land, form part of an
architectural design, or to create a permanent improvement, then it is a fixture.
Even an object resting on the ground by its own weight alone can be a fixture if
the purpose of placing it there was to enhance the land (D’Eyncourt v Gregory;
Leigh v Taylor).
• If the object was attached to the land for the better enjoyment of the object then
it retains its characteristic as a chattel.
Case Examples
• D’Eyncourt v Gregory (fixture): Tapestries fixed into panelled walls, pictures,
marble vases and garden ornaments were held to be fixtures despite their ease
of removal because they were an overall architectural design.
• Leigh v Taylor (chattel): Tapestries never lost their character as chattels and
was held that they could only be enjoyed in this way. Stretched over canvas and
tacked to a framework of wood nailed to the wall.
• Elitestone Ltd v Morris and Another (fixture): Freestanding bungalow and
garden shed or greenhouse on concrete blocks set into the ground was held to
be part of land. A house that is constructed so as to be moveable remain a
chattel. In this case the greenhouse could not be moved without destruction, so
it is a fixture.
,• TSB Bank Plc v Botham: fitted carpets, curtains, light fittings, gas fires
connected by a gas pipe were all chattels. Fitted kitchen units were fixtures.
Bathroom fittings are fixtures as without them the room would not function as a
bathroom.
Estates in Land
Only certain property rights can be legal, but all property rights are capable of being
equitable. Third parties can have rights over an estate. These can be legal,
equitable or statutory right.
• A right can be legal it if appears in ss.1(1) and 1(2) LPA 1925 and meets the
necessary formalities.
• Anything that falls outside the list in ss.1(1) and 1(2) LPA 1925 can only be
equitable and equitable interests must also meet the necessary formalities.
• It is possible to have two legal estates in the same piece of land at the same
time e.g., landlord with a freehold estate and tenant with the leasehold estate.
Estates (s.1(1)) LPA 1925) and interest (legal and equitable) can be divided into:
• Ownership of the Land: Freehold and Leasehold.
• Owned by someone else (third party): Lease, Mortgage, Restrictive Covenant,
Easement, Option, Profits, Estate Contract, Beneficial interest under a trust
(express or implied).
Capable of Being Legal
Capable of being legal, s.1(1) LPA 1925:
• The estate in fee simple absolute in possession (freehold).
• The term of years absolute (leasehold).
Freehold:
• Fee: Capable of being inherited.
• Simple: Can pass to any class of heir.
• Absolute: The estate is not determinable or conditional on any event.
• In possession: Immediate right to possession.
Leasehold:
• Tenant is granted exclusive possession of land for a fixed period.
• A term of years s.205(1) LPA 1925: A term for less than a year, or for a year or
years, and a fraction of a year or from year to year.
• Two types of leases: Fixed Term or Periodic.
• Fixed Term Leases: The lease can be for any period, provided the maximum
duration is certain.
• Periodic Leases: A lease for one period, a fixed period, which goes on
extending itself automatically until either the landlord or tenant terminates the
lease by notice. Notice to quit would usually be for the period of tenancy.
Commonhold (The Commonhold and Leasehold Reform Act 2002)
, • This form of tenure gives a buyer a freehold interest in their flat or house with
communal areas being managed by a common hold association run by
commonhold owners.
Interests in Land Capable of Being Legal, s.1(2) LPA 1925:
• Easements: A right of one landowner to make use of another nearby piece of
land for the benefit of their own land, e.g., right of way.
• Profits: A right to go on somebody else’s land and take from that land something
which exists naturally, e.g., right to fish or right to graze cattle.
Only easement and profits lasting forever or for a fixed duration are capable of
being legal i.e., uncertain duration means not capable of being legal, for a life time
is not forever.
• Rent charges: Right to receive a periodic payment charged on the land.
Capable of being legal if they are perpetual (i.e., forever) or for a term of
years absolute (i.e., for a fixed duration).
• Charges by way of legal mortgage: An interest over property granted by the
borrower to the lender as security for a debt or the discharge of some other
obligation.
• Interest in land which arise by operation of statute: Rights arise against a
piece of land by operation of an Act of Parliament. E.g., the charge for inheritance
tax or legal aid.
• Right of entry:
o A landlord’s right to forfeit the lease if the tenant breaks the terms of the lease.
OR
o A rentcharge owner’s right to reclaim the land if money owed is not paid.
Equitable
s.1(3) LPA 1925: This covers all other interests that can only be equitable. E.g.,
restrictive covenant, estate contracts (options or equitable lease), beneficial
interests, trusts (express or implied), or equitable easement (uncertain period).
Equitable property can be created in several ways.:
• Estate Contract: Contract to create or transfer a legal estate or interest.
• Trying to grant a legal estate or interest but failing to comply with the relevant
formalities.
• By grant of an estate or interest by a person who owns only an equitable right.
• By grant of an estate or interest which can only exists in equity.
• Equitable interest under a Trust: Express Trust or Implied Trust.
Express Trust:
• Legal owner who creates the express trust is the settlor.
• Defining characteristic: Trustee holds the legal title, freehold or leasehold.
Beneficiary holds beneficial interest. Equity intervened to protect the beneficiary
through the device of a trust.
• Self-declaration: Settlor retains the legal title to their property but declares that
they hold the property as trustee for the benefit of another person.
