Land Law Notes

Land Law Notes


Land Law – Foundations/Basics

Registered and Unregistered Land
Most land in England and Wales is registered (listed on the Central Register which is
maintained by HM Land Registry.) This states who owns what land and on what terms. Since
1990s it has been made compulsory to register property on a disposition e.g. a sale or the
grant of a lease of over 7 years.
Some land is unregistered especially in East Anglia. HM Land Registry has no information
about unregistered land. Unregistered landowners rely on old documents and deeds to
prove ownership. These documents may be held by themselves, solicitors or the bank.
Reviewing these documents to extract key information can be strenuous and so can locating
the documents (ensuring they are kept safe and in the right place for when they are
needed.) For this reason, there’s been a push for all landowners to register their land with
the Land Registry, doing so ensures clarity of ownership as well as boundaries of the land.
Many deeds and other documents are old and inaccurate whereas registering with Land
Registry gives full insight into who has an interest in the land, whether any other
dispositions exist and all previous owners.

Disposition = the act of
transferring or giving up that
property to another’s care or
possession.



Overriding and Overreaching Interests
Overreaching
This is the process by which the rights of beneficiaries under a trust of land, become
detached from the land on conveyance and attach to the proceeds of the sale. A person
holding only beneficial ownership can be said to have rights in the value of the land rather
than the land itself. Those with equitable ownership rights will also hold legal title so
overreaching won’t be a problem since a conveyance of property will require consent.
Difficulties arise where a beneficial owner does not hold legal title as the trustees may
convey the property without their knowledge or consent. Overreaching ensures the land-
purchaser takes the property free from any beneficial interests and applies irrespective of
notice.
Overreaching stems from S.2(1) Law of Property Act 1925 which provides ‘a conveyance to a
purchaser of a legal estate in land shall overreach any equitable interest or power affecting
the state, whether or not he has notice thereof.’

Beneficiaries = person who derives advantage from something e.g. trust, will or life insurance
policy
Conveyance = the legal process of transferring property from one owner to another
Estate = refers to the rights which a person has to control and use the land for a period of
time, depending on the nature of the estate. This is also known as:
 Owner
 Proprietor
 Paper owner
 Land owner
 Freeholder
 Leaseholder

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Overriding
Created by Land Registration Act 1925. They are interests not protected on the Land
Registrar but nevertheless, bind any person who acquires any interest in registered land,
either on 1st registration or where there has been a registrable disposition of a registered
estate that has been completed by registration. S.29(2)a)ii) Land Registration Act 2002 gives
priority to overriding interests even though they are not protected on the register.
Categories of interests are set out in Schedule 3 of the Act, which replaced overriding
interests which existed in S.70 Land Registration Act 1925. Overriding interests include:
 Leases of less than 7 years
 Legal easements
 Profits a prendres – the right to take something from another’s land that is both
capable of ownership and a product of nature e.g. the removal of part of the land
itself such as soil or minerals, taking something growing on the land e.g. grass. This
includes ‘taking’ by animals e.g. a right to graze sheep or pasture cattle, the killing of
wildlife living on the land e.g. rights of hunting and fishing.
 Public rights of way
 Being in occupation of the property
And many more.

Co-ownership
This is where 2 or more people hold an interest in the same land at the same time. Law of
Property Act 1925 says co-ownership gives rise to a trust. If one person owns property, he is
the sole legal owner. If 2+ people own the property, they are co-owners. Where there is co-
ownership of land, each legal owner simultaneously enjoys the rights and responsibilities of
property ownership. There are two types of ownership: joint tenancy and tenancy in
common.

Joint Tenancy – normally married couples Tenancy in Common – used for tax planning
purposes
 Equal rights to the property  Different shares in the property as
agreed
 On death of one owner, the land is  Property does not automatically
automatically given to the surviving pass if one owner dies
owner
 Cannot pass on your share of the  Can pass on your share of of the
property in a will property in your will

2 Types of Estate in Land
Freehold = permanent and absolute ownership of land or property with the freedom to
dispose of it at will
Leasehold = you own the land for a period of time (rent/lease)


All land in England and Wales is owned by the crown. However, a person can own an
‘estate’ in the land, this is the right to possess the land for a slice of time.

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Land
Registration 1925 was an
Act 1925 important year for
land law



Trustee Act 1925
Administration of
Estates Act 1925
Land Changes Act 1925


S1(1) Law of Property Act 1925 – ‘the only estates in land which are capable of subsisting or
being created or conveyed at law are: (a) an estate in fee simple absolute in possession
(freehold) (b) a term of years absolute (leasehold)’
Freehold also known as owner, freeholder, freehold estate owner
Leasehold/lease/head lease also known as tenant, leasee, leaseholder, leasehold estate
owner
Sub-leasehold/sub-lease also known as sub-tenant,sub-lessee, sub leasehold estate
owner

Trusts
Trust = a legal arrangement in which one person, the trustee, controls property for the
benefit of another person, the beneficiary. The person who creates the trust is called the
settlor, grantor or trustor.

There are different trusts and what type they are is all dependant on how and who by they
are created. Most trusts are express trusts.
Express Trust This is when the settlor (legal owner) declares that they hold
themselves or a trustee holds property on trust for
beneficiaries. E.g. many older people create trusts of land for
the benefit of their grandchildren with their own children
being their trustee. This is typically done when grandchildren
are not 18 years of age yet and the trustee holds it for the
grandchildren until they turn 18. There are many
requirements for an express trust e.g. intention – there must
be a clear intention on behalf of the settlor to create a trust
and declaration of trust – there must be a declaration of trust
in writing and signed by the person creating the trust.
Implied Trust This is a trust that is implied by the circumstances and can be
created only with the intervention of a court that is trying to
right a wrong or clear up a misunderstanding. Typically used
where an express trust fails and the court still wants to ensure
the purpose of the trust is carried out, therefore the court

, Land Law Notes


create an implied trust on behalf of the settlor to make sure
the purpose of the original trust or likewise is carried out.
There are 2 main types of implied trusts:
1) Resulting Trusts – This arises where a trust fails. This
means that the property is transferred back to the
settlor (creator of the trust) or if the original trust was
created in a will and the settlor is dead, it goes back to
his estate e.g. next of kin
2) Constructive Trust – this is a duty by one person or
company to hold some property for another person or
company. It is set up by a court as an equitable
remedy. This is something done by the discretion of
the court and not in accordance with a statute. A
constructive trust is usually created by the court.

Leases
Lease = a form of ownership of land, however, unlike freehold ownership which lasts
forever, leasehold ownership lasts for a specific period of time

A lease may take the form of a legal estate which is stated under S.1(1)b) Law of Property
Act 1925, or it may be an equitable interest depending on the formality used to create it.
Distinguishing Lease from License
Lease License
If a person occupies under a lease, they Licensees may be evicted at will or in the
have more protection than one who event of a contractual license the term of
occupies under a license notice provided in the contract.
Leaseholder has a proprietary interest No interest – legal or equitable – in the land
Lease would survive the transfer of Licensee has a personal interest therefore a
ownership license is not an interest in the land and
therefore cannot survive the transfer of
ownership

In determining what makes a lease, the Street v Mountford criteria applies:
1. There must be certainty of term:
 A fixed and certain maximum duration of the lease – Lace v Chantler
 A certain start date
2. There must be exclusive possession:
 The ability of the leaseholder to exclude all others and the landlord from the
property
3. Is there rent or consideration?
 As decided in Street v Mountford, it was stated that rent is a requirement for a
valid lease, however, the law has further developed. Under S.205(1)xxvjj) Law of
Property Act 1925 as well as the case of Ashburn Anstalt v Arnold, to state that
rent is no longer necessary in the determination of a lease