LECTURE ONE - FREEHOLD LAND
A LAND LA W MAP
Device that wil l be used from time t o time as a means of tying under standing and the rules of land law toge ther. The land law map giv es an atlas of land law , so we know where everythin g is, and then find our wa y through the subject. The most basic q uestion we could ask is w hat is land? W e hav e returned t o a roman scholar na med Accursi us and Italian jurist in the 12 centur y. He de veloped a maxim to d enote land and land th
owner ship and he said, ‘the per son who owns the surf ace owns up to the hea vens and down to hell’ Essentially denotes tha t when we think of land w e have t o think of diff erent dimensions; La nd in multiple dimensions. How does the ma xim account f or;
-Commercial air tr avel & priva te dro ne
-Intensiv e mining e.g. Fracking
-Rotations of the Int ernational Space St ation. WHA T MAK ES LAND SPECIA L?
Gener al Attribut es
-Perm anence- Land is durable and immovable, it’ s as permanent as w e can ha ve. -Limited a vailability - ‘Buy land, they ar en’t making it an ymore’ (Mark T wain) The quantity of land we ha ve is fix ed so if you o wn a piece of land it gives the quality o f having a natur al monopoly . There ar e exceptions where quality of land is declining such as coas tal erosion and rising sea lev els. -Multiple simultaneous use - For ex ample W estqu ay wa termark. Consider how the lan d is organised and used. Its or ganised vertic ally as there ar e vertical boundaries be tween different shop s and rest auran ts. Used horizon tally though floors. I t is org anised tempor ally also as they t end to hav e a lease of the pr operty . They don’t own the shop itself t hey lease it from the original owner of the site. The final way its or ganised is t hrough common spaces. -Social importance
-Uniqueness- The r eal significant diff erence bet ween a house and a bicy cle is the uniqueness. Physical location c annot be shared b y another piece of land every one is unique. Bicycle, c ars anything else c an be mass produ ced. Theref ore, this has signific ant property l aw differ ences. If someone damages y our bicycle or phone th e compensation would be damages. With land and housing, compensation o f money is not good enough as it will not p ut you in the same position as you w ere bef ore. Ther efore, the rem edy that ’s available with land is a propri etary
remedy . A remedy f or the return of the thing itself . McFarlane notes in “… phy sical location can nev er be shared by a nother piece of land. In this significant s ense, all pieces of land are unique” McFHN4 [1]
-Power & Property - The Normans w ere the fir st wa ve that c ame, and colonised Ir eland and they br ought with them their ow n sys tem of land law . Land law was a crucial de vice in solidifying the power s tructures of the Norma ns, it ga ve them cont rol ov er land. Land has been the fundamen tal wealth of society in history and so con trol of land giv es you significant
power . Legal A ttributes
-Rem edies -Formality
-Regis tration
-Tenure & Est ates
SPECIAL LE GAL ‘RULES’
-Real vs. personal rem edies- With land you ge t real re medies as opposed to per sonal remedies lik e damages
-Formality r equiremen ts that apply to land - To acquire l and there are rul es of formality tha t apply .
Such as con veyances to be by deed- LP A 1925, s.52(1)
Land contr acts must b e in writing- LP A 1989, s.2(1)
-Regis tration- Unlik e many other things w e have a system of regis tration for title t o land in this jurisdiction. Regis tration of title to land
-Tenure & Est ates
Terminology of land law
RIGHTS O VER LAND
Land law is not r eally about the thing itself . ‘For serious students of pr operty , the beginning of truth is the rec ognition that proper ty is not a thing but a pow er relationship – a r elationship of social and legal legitima cy existing be tween a per son and a valued r esource (whether t angible or int angible)’ Gray, Elements of Lan d Law . So, wh at is crucial is to appr eciate that w e don’t equat e property with things . We n eed to think in terms of r elationships betw een a person and a thi ng that would ha ve an eff ect on a thir d party . This relationship i s expressed in terms of rights o ver land. Thus;
-We cannot equa te ‘property’ with ‘things’ -We need to think in t erms of rela tionships between a per son and a thing which ar e capable of binding third p arties
-This rela tionship is express ed in terms of ‘rights’ (estat es, inter ests)
DOCTRINE OF TENURE
Normans (1066) intr oduced f eudal tenure w hich is their legal s ystem. V ery peculiar s ystem of land law that w as centr ed on the idea of tenur e. Under this sy stem the King w as the outright ow ner of all land. He ren ted lesser int erests to lower subjects in r eturn f or services. (i.e. esta tes). This sy stem has been dismantled ov er time and pr ogressively r estricted, but the cont emporary rele vance is tha t we still theor etically ha ve the idea that all land ultim ately r ests with the sov ereign. DOCTRINE OF EST ATES
What is much mor e important and has more con tempor ary relevan ce as students is the do ctrine of estates. Est ates r efers to r ights over land in t erms of the dur ation. It means how long your rights ov er
land oper ate. The tw o main esta tes we ha ve in the English leg al sy stem ar e the freehold and the leasehold es tate. Fr eehold esta te is the larg est est ate equiv alent to ow nership. So, when we wa tch homes under the hammer or tv shows about buying pr operty where people sa y they w ant to get on the housing ladder , what they’r e ref erring to is fr eehold owner ship. Freehold is the equiv alent to owner ship of land. W e also have l easehold and we fo cus on leasehold in the next le cture. The wa y
A LAND LA W MAP
Device that wil l be used from time t o time as a means of tying under standing and the rules of land law toge ther. The land law map giv es an atlas of land law , so we know where everythin g is, and then find our wa y through the subject. The most basic q uestion we could ask is w hat is land? W e hav e returned t o a roman scholar na med Accursi us and Italian jurist in the 12 centur y. He de veloped a maxim to d enote land and land th
owner ship and he said, ‘the per son who owns the surf ace owns up to the hea vens and down to hell’ Essentially denotes tha t when we think of land w e have t o think of diff erent dimensions; La nd in multiple dimensions. How does the ma xim account f or;
-Commercial air tr avel & priva te dro ne
-Intensiv e mining e.g. Fracking
-Rotations of the Int ernational Space St ation. WHA T MAK ES LAND SPECIA L?
Gener al Attribut es
-Perm anence- Land is durable and immovable, it’ s as permanent as w e can ha ve. -Limited a vailability - ‘Buy land, they ar en’t making it an ymore’ (Mark T wain) The quantity of land we ha ve is fix ed so if you o wn a piece of land it gives the quality o f having a natur al monopoly . There ar e exceptions where quality of land is declining such as coas tal erosion and rising sea lev els. -Multiple simultaneous use - For ex ample W estqu ay wa termark. Consider how the lan d is organised and used. Its or ganised vertic ally as there ar e vertical boundaries be tween different shop s and rest auran ts. Used horizon tally though floors. I t is org anised tempor ally also as they t end to hav e a lease of the pr operty . They don’t own the shop itself t hey lease it from the original owner of the site. The final way its or ganised is t hrough common spaces. -Social importance
-Uniqueness- The r eal significant diff erence bet ween a house and a bicy cle is the uniqueness. Physical location c annot be shared b y another piece of land every one is unique. Bicycle, c ars anything else c an be mass produ ced. Theref ore, this has signific ant property l aw differ ences. If someone damages y our bicycle or phone th e compensation would be damages. With land and housing, compensation o f money is not good enough as it will not p ut you in the same position as you w ere bef ore. Ther efore, the rem edy that ’s available with land is a propri etary
remedy . A remedy f or the return of the thing itself . McFarlane notes in “… phy sical location can nev er be shared by a nother piece of land. In this significant s ense, all pieces of land are unique” McFHN4 [1]
-Power & Property - The Normans w ere the fir st wa ve that c ame, and colonised Ir eland and they br ought with them their ow n sys tem of land law . Land law was a crucial de vice in solidifying the power s tructures of the Norma ns, it ga ve them cont rol ov er land. Land has been the fundamen tal wealth of society in history and so con trol of land giv es you significant
power . Legal A ttributes
-Rem edies -Formality
-Regis tration
-Tenure & Est ates
SPECIAL LE GAL ‘RULES’
-Real vs. personal rem edies- With land you ge t real re medies as opposed to per sonal remedies lik e damages
-Formality r equiremen ts that apply to land - To acquire l and there are rul es of formality tha t apply .
Such as con veyances to be by deed- LP A 1925, s.52(1)
Land contr acts must b e in writing- LP A 1989, s.2(1)
-Regis tration- Unlik e many other things w e have a system of regis tration for title t o land in this jurisdiction. Regis tration of title to land
-Tenure & Est ates
Terminology of land law
RIGHTS O VER LAND
Land law is not r eally about the thing itself . ‘For serious students of pr operty , the beginning of truth is the rec ognition that proper ty is not a thing but a pow er relationship – a r elationship of social and legal legitima cy existing be tween a per son and a valued r esource (whether t angible or int angible)’ Gray, Elements of Lan d Law . So, wh at is crucial is to appr eciate that w e don’t equat e property with things . We n eed to think in terms of r elationships betw een a person and a thi ng that would ha ve an eff ect on a thir d party . This relationship i s expressed in terms of rights o ver land. Thus;
-We cannot equa te ‘property’ with ‘things’ -We need to think in t erms of rela tionships between a per son and a thing which ar e capable of binding third p arties
-This rela tionship is express ed in terms of ‘rights’ (estat es, inter ests)
DOCTRINE OF TENURE
Normans (1066) intr oduced f eudal tenure w hich is their legal s ystem. V ery peculiar s ystem of land law that w as centr ed on the idea of tenur e. Under this sy stem the King w as the outright ow ner of all land. He ren ted lesser int erests to lower subjects in r eturn f or services. (i.e. esta tes). This sy stem has been dismantled ov er time and pr ogressively r estricted, but the cont emporary rele vance is tha t we still theor etically ha ve the idea that all land ultim ately r ests with the sov ereign. DOCTRINE OF EST ATES
What is much mor e important and has more con tempor ary relevan ce as students is the do ctrine of estates. Est ates r efers to r ights over land in t erms of the dur ation. It means how long your rights ov er
land oper ate. The tw o main esta tes we ha ve in the English leg al sy stem ar e the freehold and the leasehold es tate. Fr eehold esta te is the larg est est ate equiv alent to ow nership. So, when we wa tch homes under the hammer or tv shows about buying pr operty where people sa y they w ant to get on the housing ladder , what they’r e ref erring to is fr eehold owner ship. Freehold is the equiv alent to owner ship of land. W e also have l easehold and we fo cus on leasehold in the next le cture. The wa y
