BPP GDL Study Notes Chapter 1

Question 1

What is a ‘proprietary’ right?

Answer 1

Describes the rights of the owner. A right in the property itself, not just to temporary possession or use.

Question 2

What can the owner do with a property?

Answer 2

Anything they want; ownership gives the unrestricted right to deal with or dispose of the property at will. Eg grant rights to others, sell or give away his proprietary rights, allow lesser rights etc.

Question 3

What has the owner granted a tenant?

Answer 3

A lesser right of temporary possession or use. This can also constitute a proprietary right.

Question 4

What are ‘personal’ rights? Give an example.

Answer 4

Rights created by the owner which aren’t proprietary. The prime example is the license. A license is a right not in or to the property itself but against the owner personally.

Question 5

How are personal rights revocable? What are the consequences?

Answer 5

The owner can choose to revoke them. If this amounts to a breach of contract, the holder of a personal right may be awarded damages but he cannot insist on recovering the possession or use of the property.

Question 6

What is the doctrine of privity of contract?

Answer 6

If ownership of a property changes hands and the holder of a personal right claims for damages for breach of contract, no action can lie against the new owner for a breach by the former.

Question 7

Who legally owns all the physical land in the country.

Answer 7

The Crown. The most any person may own is a right of temporary possession or use of land

Question 8

If a person has been granted a strong (lesser) right of possession akin to ownership and they are denied the ability to exercise that right, what could they seek as a remedy?

Answer 8

He could seek as his remedy the use of the land itself. The person who granted the lesser right of possession to him would not have the option of refusing this right and paying damages as compensation instead.

Question 9

Ben has a right to possession of a piece of land that is held as a proprietary right. He is denied the ability to exercise this right by Bill, who granted Ben the original right. If Ben brings a claim against Bill and it is successful, where would the remedy be fixed?

Answer 9

The remedy would fix on the land burdened by the right, instead of operating personally against Bill. It would therefore be designed to give Ben access to the land rather than to punish Bill.

Question 10

How do proprietary rights developing from a right to possession or use relate to the current possessor of the burdened land?

Answer 10

• Proprietary rights in land operate, in principle, irrespective of the identity of the person currently possessing the land.
• They are therefore enforceable against the burdened land even if the current possessor is not the original grantor of the right.

Question 11

If someone is granted a proprietary right in land that develops from a lesser right to possession or use, is it fixed to them alone?

Answer 11

No. The benefit of such proprietary rights in land may pass to successors of the land benefitting from the right. Persons other than the original grantee may be able to benefit from these rights.

Question 12

What is the broad ambit of land law?

Answer 12

The acquisition and transfer of varied proprietary rights in land, and the rights and duties of the holders of these rights between themselves.

Question 13

Other than the technical right of ownership of the Crown, what is the highest proprietary right anyone can hold?

Answer 13

An ‘estate’ in land - the right to possess the land for a slice of time, with or without attached conditions.

Question 14

What is the highest possible estate in land?

Answer 14

A freehold estate.

Question 15

What is the technical name of the greatest of freehold estates, and what does the name mean?

Answer 15

The ‘fee simple absolute in possession’. ‘fee’ means it can be inherited and ‘simple’ that it can be inherited by any heir, even distant relatives. It is a right of possession that lasts until the owner dies without heirs (ie no blood relatives or instructions in a will).

Question 16

What is a ‘fee tail’?

Answer 16

• Sometimes known as an ‘entail’
• An estate of inheritance which came to an end on the death of the lineal descendants of the grantee (the person receiving the estate).
• Aimed to keep land within the immediate family through the generations.
• No longer possible to create new fee tails

Question 17

What is a ‘life estate’?

Answer 17

An estate that lasted for the period of the life of the grantee.

Question 18

What was an estate which lasted for the life of someone other than the grantor called?

Answer 18

An estate ‘pur autre vie’

Question 19

What is a ‘fee simple in reversion’?

Answer 19

The residue of a fee simple owner’s estate after they grant a life estate to someone else. Eg A gives land ‘to B for life’. During B’s life, A has ‘an interest in reversion’ and when B dies the land reverts back to A

Question 20

What is a ‘fee simple in remainder’?

Answer 20

Where A is the fee simple owner and A gives land ‘to B for life, remainder to C’.

• The entirety of the fee simple has been granted to B and C in succession. A has no remaining interest in the land.
• On B’s death the land passes to C. During B’s life, C is said to have an interest ‘in remainder’

Question 21

What are estates of leasehold?

Answer 21

Where a freehold owner grants a lesser estate which is of a certain duration. The estate granted is called the ‘leasehold’ or ‘lease’.

Question 22

What is the ‘freehold reversion’?

Answer 22

The residue of the freehold owner’s estate after the granting of a lease. This ensures that at the termination of the lease, possession of the land automatically reverts back to the freeholder.

Question 23

What is a ‘leasehold reversion’?

Answer 23

Where a leaseholder themselves grants a (shorter) lease while retaining his own original lease. The original leaseholder holds a ‘leasehold reversion’. At the termination of the sub-lease possession reverts to the original leaseholder from the ‘sub-lessee’.

Question 24

What are ‘interests in land’?

Answer 24

Proprietary rights of limited use that are granted by freehold or leasehold estate owners to third parties which do not confer possession but some lesser form of use of the land.

Question 25

If a right affecting land fails to qualify as proprietary, what rules of law is it governed by?

Answer 25

• As with any other personal right, it is governed by the standard rules of the law of contract.
• Such rights will usually only be enforceable against the person who created them.

Question 26

What is the general principle in relation to proprietary rights of limited use?

Answer 26

Subject to occasional exceptions, they should not result in the ability to compel another to do a positive act. Eg you could never have a proprietary right that compels your neighbour to maintain your garden.

Question 27

If a right has been established as proprietary, will it always be proprietary in application?

Answer 27

No - the same right could be either proprietary or personal depending on the circumstances in which it has arisen.

Question 28

Can the list of rights capable of existing as estates be expanded?

Answer 28

Not at the moment.

Question 29

What are estates and interests in land subject to in order to control their creation and acquisition?

Answer 29

Strict definitional requirements and strict requirements as to the formalities for their creation/acquisition.

Question 30

What can we use to establish whether a right has been acquired as a proprietary right or as a personal right?

Answer 30

1) The ‘list’ of rights capable of being acquired as proprietary rights.
2) The definitional requirements in each case.
3) The formalities required for acquisition in each case.

Question 31

What system protects a buyer of land from proprietary rights that were invisible at the time of the new owner’s purchase?

Answer 31

The requirement that a proprietary interest in land must be made apparent by REGISTRATION if it is to bind a purchaser of subsequent rights in the same land.

Question 32

Give three examples of relationships in land between legal persons that are regulated by the law.

Answer 32

1) a mortgagor and a mortgagee
2) landlord and tenant
3) co-owners and beneficiaries under trusts of land

Question 33

What does the term “land” include?

Answer 33

• the physical land and the buildings on it, including fixtures.
• intangible rights over land eg an easement (right over a neighbours land), or a “profit a prendre” (a right to take something eg crops).

Question 34

What are incorporeal hereditaments?

Answer 34

intangible rights over the land that are capable of being inherited

Question 35

What are corporeal hereditaments?

Answer 35

the physical and buildings on it that are capable of being inherited.

Question 36

What maxim describes the limits of ownership of things above and below a piece of land?

Answer 36

“he who owns the land owns everything up to the heavens above and the depths below.”

Question 37

How are owner’s rights to airspace restricted?

Answer 37

They are restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it.

Question 38

What is the lower airspace?

Answer 38

that portion of the airspace that is necessary for the landowner’s use and enjoyment.

Question 39

How does trespass work in relation to airspace?

Answer 39

• if a structure overhangs your property, it is trespass even if no damage is caused.
• no right of trespass for flying more than 500 feet over someone’s land.

Question 40

What remedy could a court offer if they agree there has been a trespass?

Answer 40

either the discretionary remedy of an injunction or damages.

Question 41

What act grants immunity from trespass or nuisance from aircraft? Under what conditions?

Answer 41

s76 Civil Aviation Act 1982 for any flight “at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable”

Question 42

Where a body of water is a boundary between two ownerships, where is division presumed to exist?

Answer 42

at the midpoint between the two banks.

Question 43

If a land is bounded by the sea, where is boundary line and who owns the rest?

Answer 43

at the high water mark - everything below this is owned by the Crown.

Question 44

If a wild animal is killed, who owns it?

Answer 44

the landowner on whose property the animal was killed (regardless of the killer)

Question 45

How are things growing on the land distinguished between when classifying what counts as “land”?

Answer 45

fructus naturales - natural products of the soil - vs fructus industriales - annual crops requiring the expenditure of human effort to grow.

Question 46

What is a “fixture”?

Answer 46

a chattel which has been physically attached to the land and is now counted as being part of it. It is transferred with the land unless lawfully severed beforehand.

Question 47

What are the tests for a fixture?

Answer 47

1) the degree of annexation

2) the purpose of annexation

Question 48

What is the “degree of annexation”?

Answer 48

A test to determine if an item is a chattel or a fixture. The more firmly it is fixed to the ground, the more likely it is a fixture - regardless of weight. If it rests on its own weight it is likely to be a chattel. So a moveable greenhouse might be a chattel but an air conditioning unit a fixture.

Question 49

What is the “purpose of annexation”?

Answer 49

The senior test to determine if an item is a chattel or a fixture. Essentially, it asks if an item was placed in the property to improve the property permanently, or to temporarily improve the enjoyment of the chattel? If it is there permanently, it is a fixture. If it is there for convenience, a chattel. If removing it will damage the fabric of the building, or a chattel is incorporated into the design of the building, it is usually seen as a fixture.

Question 50

Why is the distinction between a chattel and a fixture so important?

Answer 50

1. as a fixture is part of the land, ownership can only be transferred by a conveyance; a chattel can be transferred by physical delivery
2. the owner may not remove a fixture after he has contracted to sell the property to another.
3. as between personal representatives and beneficiaries, fixtures pass as realty and non fixtures as personalty
   4 where the land is mortgaged, fixtures form part of the security and will be included in any sale by the mortgagee following repossession.

Question 51

What is the relationship between tenants and fixtures?

Answer 51

fixtures attached by a tenant become part of the land and pass to the landlord at the end of the lease, except for trade, ornamental, domestic and agricultural fixtures.