AN INTRODUCTION TO MODERN LAND LAW
Introduction
Land law originates from reforms after William, the Conqueror
Concepts codified in legislation in years leading up to 1926 LPA 1925 already outdated
Land Registration Act 2002 provides more clear and efficient regulation of registering title
Nature and scope of law of Real Property
Concerns with land, rights and processes to create rights and interests
Law of Property Act 1925(LPA): land includes land of any tenure, mines and minerals… building
parts or parts of buildings and other corporeal hereditaments, rent and other incorporeal
hereditaments includes tangible physical property like fields, factories, houses, and intangible
e.g. rights to walk across a neighbours driveway + charge on land to create a debt (mortgage)
Land is sold through a contract and mortgage is a contract of debt
Parties can execute deed formally ‘grants’ right to buyer conveyancing parties to such a
transaction can proceed directly ‘by grant’ without concluding a separate contract
Property rights whether created by contract, by grant, by e-conveyancing or other methods, is
capable of affecting other people, not only parties that created the right
Proprietary rights= rights that become part of land and not personal to parties that created them
A and B have entered contract for creation of proprietary right in favour of B, over As land,
contract is enforceable between A and B like any other contract
A sells land to X (right of ownership or estate in land), Bs proprietary rights can bind X
Overburdened land with other people’s rights difficult to use for own purposes less valuable
National Provincial Bank v Ainsworth (1965): whether wife’s right to live in former matrimonial
home regarded as proprietary right given not own a share, if right could it bind bank with
mortgage. Lord Wilberforce: ‘must be definable, identifiable by third parties, have stability,
capable in the nature of assumption by third parties’ satisfy four-fold test
Proprietary rights can affect land for considerable periods irrespective who owns it or occupies it
Types of proprietary rights
Theoretically all land owned by Crown, all persons may own ‘estate’right to use + control land
Fragmentation of title: different people enjoy same land at same time, own fragment of title
FEE SIMPLE OR FREEHOLD ESTATE: right to enjoy land duration of life + successors, freely
transferable (gift or sale); full ownership (can sell it or leave it on death via a will or gift)
LEASEHOLD ESTATE: right to use + enjoy land exclusively as owner for stated period of time.
Unlikely event fee simple terminates before lease expires than lease also terminate; leasehold
legal or equitable, with equitable leases being more common in residential than commercial
FEE TAIL: ‘interest’ in another person’s land – interest to one person and their male heirs permits
owner use of land for duration of life, can be sold, reverts back to fee simple estate or Crown;
impossible to create new interest in fee tail (TOLATA 1996)
LIFE ESTATE: gives holder right to use and enjoy land for duration of life, on death reverts to
superior estate owner, fee simple or long leaseholder, owner=‘life tenant’; life interest may exist
as only an equitable interest (s.1 of LPA 1925)
All 4 are proprietary as in can be sold or transferred
Interests in land states the proprietary rights a person owns in the land e.g. right of way over
someone else’s land (an easement), a debt secured on the debtor’s land(mortgage), right to
prevent an owner carrying on some specific activity on their own land
Legal or Equitable Quality of Proprietary rights
1
, Gives claimant remedy against D for denial of claimants right over D’s land –Court of Chancery
mitigates harshness of common law, gives equitable remedy even in absence of formalities
Since Judicature Act 1875 all clashes of distinction no longer occur
S. 1 of LPA 1925: legal rights= (a) fee simple absolute in possession (b) terms of years absolute
oAbsolute possession means immediate right to possession of land
oOnly interests or charges over land capable of being conveyed or created at law are easement,
right or privilege over land; rent charge; charge by way of legal mortgage; rights of entry
oAll other estates, interests and charges over land are equitable interests
Creating of right
If falls under s.1 of LPA 1925, proprietary right will be legal if created with proper formality; must
be created by a deed (written document of special kind beyond a contract) – LP(MP) Act 1989 s.1
states it is a deed executed with signature, witnessed with delivery of deed
Special circumstances need for a deed: certain leases for 3 years or less (‘short lease exception’ –
s.52 and 54 LPA 1925) or where an easement arises by prescription (long use)
In addition to deed, legal estates + interests must be registered as by LRAfailure= equitable
Registration includes all legal freeholds must be registered as a title, all potential legal mortgages
must be registered against title of freehold or leasehold, legal easements must be registered
against title of the freehold or leasehold land, if so created on or after 13 October 2003
3 reasons to be equitable: may be included ab initio from definition of a legal estate or interest
found in s.1 of LPA 1925 – such rights can only be equitable as cannot be legal like a life estate, a
restrictive covenant, a claim in proprietary estoppel, an option to purchase, a right of pre-
emption etc. Second no deed may have been used where such is required. Third registration may
not have occurred, where required – even equitable proprietary rights are required to be created
in a manner to exist as proprietary rights, legal or equitable, can affect land for many years
Formality to create equitable right is written contract signed by or on behalf of parties (LP(MP)A
1989) failure makes intended right void, makes into licence give personal rights use land
Exceptional cases equitable proprietary rights can be created by oral contracts provided
conditions for proprietary estoppel or implied trusts have been fulfilled.
Proposed system of e-conveyancing and distinction between legal and equity property rights
LRA 2002: creation or grant of property rights required to be carried out exclusively by means of
electronic entry on register against title
If it became electronic, no scope for distinction between ‘legal’ and ‘equitable’ as deeds and
written instruments would be irrelevant
Division of ownership and the ‘trust’
Enjoyment of land regulated by ‘trust’ – property can be owned by 2 or more people at same
time, different quality of ownership over same property – one legal other have equitable title
A holds land on trust for B: A is legal owner (trustee), B is equitable owner (beneficiary)
Existence of legal and equitable interests under a trust concerning land depends on trust being
created in proper manner, must be evidenced by some written document
Equitable remedies: specific performance (party told to perform what was promised + injunction
(stop party from doing something they wish to do)
Consequences of distinction between legal and equitable property rights
2
Introduction
Land law originates from reforms after William, the Conqueror
Concepts codified in legislation in years leading up to 1926 LPA 1925 already outdated
Land Registration Act 2002 provides more clear and efficient regulation of registering title
Nature and scope of law of Real Property
Concerns with land, rights and processes to create rights and interests
Law of Property Act 1925(LPA): land includes land of any tenure, mines and minerals… building
parts or parts of buildings and other corporeal hereditaments, rent and other incorporeal
hereditaments includes tangible physical property like fields, factories, houses, and intangible
e.g. rights to walk across a neighbours driveway + charge on land to create a debt (mortgage)
Land is sold through a contract and mortgage is a contract of debt
Parties can execute deed formally ‘grants’ right to buyer conveyancing parties to such a
transaction can proceed directly ‘by grant’ without concluding a separate contract
Property rights whether created by contract, by grant, by e-conveyancing or other methods, is
capable of affecting other people, not only parties that created the right
Proprietary rights= rights that become part of land and not personal to parties that created them
A and B have entered contract for creation of proprietary right in favour of B, over As land,
contract is enforceable between A and B like any other contract
A sells land to X (right of ownership or estate in land), Bs proprietary rights can bind X
Overburdened land with other people’s rights difficult to use for own purposes less valuable
National Provincial Bank v Ainsworth (1965): whether wife’s right to live in former matrimonial
home regarded as proprietary right given not own a share, if right could it bind bank with
mortgage. Lord Wilberforce: ‘must be definable, identifiable by third parties, have stability,
capable in the nature of assumption by third parties’ satisfy four-fold test
Proprietary rights can affect land for considerable periods irrespective who owns it or occupies it
Types of proprietary rights
Theoretically all land owned by Crown, all persons may own ‘estate’right to use + control land
Fragmentation of title: different people enjoy same land at same time, own fragment of title
FEE SIMPLE OR FREEHOLD ESTATE: right to enjoy land duration of life + successors, freely
transferable (gift or sale); full ownership (can sell it or leave it on death via a will or gift)
LEASEHOLD ESTATE: right to use + enjoy land exclusively as owner for stated period of time.
Unlikely event fee simple terminates before lease expires than lease also terminate; leasehold
legal or equitable, with equitable leases being more common in residential than commercial
FEE TAIL: ‘interest’ in another person’s land – interest to one person and their male heirs permits
owner use of land for duration of life, can be sold, reverts back to fee simple estate or Crown;
impossible to create new interest in fee tail (TOLATA 1996)
LIFE ESTATE: gives holder right to use and enjoy land for duration of life, on death reverts to
superior estate owner, fee simple or long leaseholder, owner=‘life tenant’; life interest may exist
as only an equitable interest (s.1 of LPA 1925)
All 4 are proprietary as in can be sold or transferred
Interests in land states the proprietary rights a person owns in the land e.g. right of way over
someone else’s land (an easement), a debt secured on the debtor’s land(mortgage), right to
prevent an owner carrying on some specific activity on their own land
Legal or Equitable Quality of Proprietary rights
1
, Gives claimant remedy against D for denial of claimants right over D’s land –Court of Chancery
mitigates harshness of common law, gives equitable remedy even in absence of formalities
Since Judicature Act 1875 all clashes of distinction no longer occur
S. 1 of LPA 1925: legal rights= (a) fee simple absolute in possession (b) terms of years absolute
oAbsolute possession means immediate right to possession of land
oOnly interests or charges over land capable of being conveyed or created at law are easement,
right or privilege over land; rent charge; charge by way of legal mortgage; rights of entry
oAll other estates, interests and charges over land are equitable interests
Creating of right
If falls under s.1 of LPA 1925, proprietary right will be legal if created with proper formality; must
be created by a deed (written document of special kind beyond a contract) – LP(MP) Act 1989 s.1
states it is a deed executed with signature, witnessed with delivery of deed
Special circumstances need for a deed: certain leases for 3 years or less (‘short lease exception’ –
s.52 and 54 LPA 1925) or where an easement arises by prescription (long use)
In addition to deed, legal estates + interests must be registered as by LRAfailure= equitable
Registration includes all legal freeholds must be registered as a title, all potential legal mortgages
must be registered against title of freehold or leasehold, legal easements must be registered
against title of the freehold or leasehold land, if so created on or after 13 October 2003
3 reasons to be equitable: may be included ab initio from definition of a legal estate or interest
found in s.1 of LPA 1925 – such rights can only be equitable as cannot be legal like a life estate, a
restrictive covenant, a claim in proprietary estoppel, an option to purchase, a right of pre-
emption etc. Second no deed may have been used where such is required. Third registration may
not have occurred, where required – even equitable proprietary rights are required to be created
in a manner to exist as proprietary rights, legal or equitable, can affect land for many years
Formality to create equitable right is written contract signed by or on behalf of parties (LP(MP)A
1989) failure makes intended right void, makes into licence give personal rights use land
Exceptional cases equitable proprietary rights can be created by oral contracts provided
conditions for proprietary estoppel or implied trusts have been fulfilled.
Proposed system of e-conveyancing and distinction between legal and equity property rights
LRA 2002: creation or grant of property rights required to be carried out exclusively by means of
electronic entry on register against title
If it became electronic, no scope for distinction between ‘legal’ and ‘equitable’ as deeds and
written instruments would be irrelevant
Division of ownership and the ‘trust’
Enjoyment of land regulated by ‘trust’ – property can be owned by 2 or more people at same
time, different quality of ownership over same property – one legal other have equitable title
A holds land on trust for B: A is legal owner (trustee), B is equitable owner (beneficiary)
Existence of legal and equitable interests under a trust concerning land depends on trust being
created in proper manner, must be evidenced by some written document
Equitable remedies: specific performance (party told to perform what was promised + injunction
(stop party from doing something they wish to do)
Consequences of distinction between legal and equitable property rights
2
