LA103: Introduction to the Law of Property Relations
2019-2020
Lecture 7
Fundamental Structures of Modern English Land Law
Student Lecture Notes
Introduction
o Estates and interests are the two forms of property right that make up the basic
building blocks of land law.
o Land, as we have mentioned, is unique in that it can sustain multiple, overlapping
forms of property right at any given time.
What is an estate?
o As noted in the lectures on political economy, the doctrine of estates developed as a
way of making sense of land ownership in light of the doctrine of tenure. The
doctrine of tenure stipulates that all land is held either immediately or mediately of
the crown. If the Crown technically owns all the land, then what is that others ‘own’
when they use and control land?
o An estate confers a right to use and control land for a period of time (even if that
period is indefinite, as in the case of a freehold, below). An estate is a ‘slice of time’
in the land.
o From Walsingham’s Case [1573], ‘the land itself is one thing, and the estate in the
land is another thing, for an estate in the land is a time in the land, or land for a time,
and there are diversities of estates, which are no more than diversities of time’.
o Prior to the passage of the Law of Property Act 1925 there were several different
types of estate (e.g. the fee tail and the life estate), but now there are just two
estates in law, specified by the LPA 1925 s1:
o An estate in fee simple absolute in possession (‘fee simple’ or ‘freehold’).
o A term of years absolute (leasehold)
Freehold (Fee Simple Absolute in Possession)
o The freehold is the closest that English land law comes to outright ownership of
the land. It confers exclusive possession, a right to control the land, forever.
o Walsingham’s Case: ‘he who has a fee-simple in land has a time the land without
end, or the land for time without end’.
o All freehold owners hold as ‘tenants-in-chief’ of the Crown. As evidence of this, if
someone dies intestate (without a will) and without a statutory next of kin, the
estate reverts (or ‘escheats’) to the Crown as bona vacantia. (see the
Administration of Estates Act 1925 s 46(1)(vi)).
Powers
, o The fee simple confers ' ... open-ended use privileges. There are no natural limits
on the use privileges that stem from the estate itself; the limits are lines drawn
from outside that concept, from public laws and from private agreement' (Bright
1998: 536). The owner of a fee simple estate enjoys full powers of disposition by
sale, gift or mortgage (unless restrictions on these powers have been registered).
This differentiates freeholds from, for instance, native title, which does not grant
powers of alienation. This imposes a primae facie duty on the rest of the world not
to interfere with the land.
o The strength of the fee simple can be illustrated with reference to Bradford
Corporation v Pickles [1895] AC 587, HL (see notes from Week 2, Lecture 2).
Leasehold (Term of Years Absolute)
o The main difference between a freehold and a leasehold is that a leasehold is
for a limited or specific amount of time.
o The term of years absolute denotes exclusive possession for a term certain.
Street v Mountford
▪ A tenant is ‘able to exercise the rights of an owner of land which is in
the real sense his land, albeit temporarily and subject to certain
restrictions’.
o The term could be a week or thousands of years. It can apply to just a room
or to a large tract of land. A lease is granted by a landlord to their tenant,
effectively carving the leasehold out of either a freehold or a superior lease.
Operating on the principle nemo dat quod non habet (‘No one can give that
which he does not have’), the creation of a lease presupposes that there is a
larger estate in the land.
o While leases will be covered in much greater detail next term, it is worth
making a few general points about them now:
▪ There are two requirements for the existence of a lease:
• Exclusive possession
• For a fixed or periodic term certain
• There will also usually be a rent, although may not always be
necessary.
▪ Leases should be differentiated from licenses or mere permission to
occupy or use land.
Interests
o There are two broad categories of interest in land, legal and equitable.
o The number and types of legal interest that it is possible to have in land are
governed both by the numerus clausus principle and by statute.
Numerus Clausus
2019-2020
Lecture 7
Fundamental Structures of Modern English Land Law
Student Lecture Notes
Introduction
o Estates and interests are the two forms of property right that make up the basic
building blocks of land law.
o Land, as we have mentioned, is unique in that it can sustain multiple, overlapping
forms of property right at any given time.
What is an estate?
o As noted in the lectures on political economy, the doctrine of estates developed as a
way of making sense of land ownership in light of the doctrine of tenure. The
doctrine of tenure stipulates that all land is held either immediately or mediately of
the crown. If the Crown technically owns all the land, then what is that others ‘own’
when they use and control land?
o An estate confers a right to use and control land for a period of time (even if that
period is indefinite, as in the case of a freehold, below). An estate is a ‘slice of time’
in the land.
o From Walsingham’s Case [1573], ‘the land itself is one thing, and the estate in the
land is another thing, for an estate in the land is a time in the land, or land for a time,
and there are diversities of estates, which are no more than diversities of time’.
o Prior to the passage of the Law of Property Act 1925 there were several different
types of estate (e.g. the fee tail and the life estate), but now there are just two
estates in law, specified by the LPA 1925 s1:
o An estate in fee simple absolute in possession (‘fee simple’ or ‘freehold’).
o A term of years absolute (leasehold)
Freehold (Fee Simple Absolute in Possession)
o The freehold is the closest that English land law comes to outright ownership of
the land. It confers exclusive possession, a right to control the land, forever.
o Walsingham’s Case: ‘he who has a fee-simple in land has a time the land without
end, or the land for time without end’.
o All freehold owners hold as ‘tenants-in-chief’ of the Crown. As evidence of this, if
someone dies intestate (without a will) and without a statutory next of kin, the
estate reverts (or ‘escheats’) to the Crown as bona vacantia. (see the
Administration of Estates Act 1925 s 46(1)(vi)).
Powers
, o The fee simple confers ' ... open-ended use privileges. There are no natural limits
on the use privileges that stem from the estate itself; the limits are lines drawn
from outside that concept, from public laws and from private agreement' (Bright
1998: 536). The owner of a fee simple estate enjoys full powers of disposition by
sale, gift or mortgage (unless restrictions on these powers have been registered).
This differentiates freeholds from, for instance, native title, which does not grant
powers of alienation. This imposes a primae facie duty on the rest of the world not
to interfere with the land.
o The strength of the fee simple can be illustrated with reference to Bradford
Corporation v Pickles [1895] AC 587, HL (see notes from Week 2, Lecture 2).
Leasehold (Term of Years Absolute)
o The main difference between a freehold and a leasehold is that a leasehold is
for a limited or specific amount of time.
o The term of years absolute denotes exclusive possession for a term certain.
Street v Mountford
▪ A tenant is ‘able to exercise the rights of an owner of land which is in
the real sense his land, albeit temporarily and subject to certain
restrictions’.
o The term could be a week or thousands of years. It can apply to just a room
or to a large tract of land. A lease is granted by a landlord to their tenant,
effectively carving the leasehold out of either a freehold or a superior lease.
Operating on the principle nemo dat quod non habet (‘No one can give that
which he does not have’), the creation of a lease presupposes that there is a
larger estate in the land.
o While leases will be covered in much greater detail next term, it is worth
making a few general points about them now:
▪ There are two requirements for the existence of a lease:
• Exclusive possession
• For a fixed or periodic term certain
• There will also usually be a rent, although may not always be
necessary.
▪ Leases should be differentiated from licenses or mere permission to
occupy or use land.
Interests
o There are two broad categories of interest in land, legal and equitable.
o The number and types of legal interest that it is possible to have in land are
governed both by the numerus clausus principle and by statute.
Numerus Clausus
