Concepts And Three Key Questions Of Property Flashcards
What is the ‘Blackstonian view’ of property?
- Property is ‘the sole and despotic dominion which one man claims and excessive is over the external things of the world, in total exclusion of the right of any other individual in the universe.’
Once its in the possession of a lord or master it is off limits for anyone else- things over which the owner has the right to exclude all others?
What are the main aims of ‘The Law of Property Act 1925’?
1925 was a defining moment of English land law.
What were the main aims of this act:
- to reduce the number of legal estates and legal rights in a piece of land- to make transaction simpler and cheaper
- to ensure that land would not remain permanently within one family’s ownership- land should be marketable
- to reduce risks to potential purchasers from unexpected third party rights
What was going on in 1925?
- Land had become an important source of revenue (wealth)
- Industrialisation and geographical mobility
- A simplified and cheaper system of transferring land was needed
How can property rights (in rem) be distinguished from personal rights (in personam)?
- A property right can be distinguished from a personal right in that it is alienable (it can be given away or sold), and it is enforceable against people who were not involved in creating it
(Law commission’s 2011 report, Making Land Work: Easements, Covenants and Profits)
National Provincial Bank v Ainsworth [1965] A.C. 1175
- A man and his wife and children were all occupants of a piece of property, though the defendant was the sole registered proprietor.
- The property was later used to secure an overdraft for his company, and the bank which granted the overdraft registered a charge against the house accordingly.
- Prior to arrangement with the bank, the man had abandoned the property, along with his family and the wife was permitted to continue living there rent free as part of the separation agreement.
- The bank sought possession of the property which the wife resisted.
How can proprietary rights be transferred?
- Proprietary rights can be transferred by the owner to someone else, and are not affected by changes in the ownership of the land- these rights ‘run with the land’
—> Once the title is establish, proprietary rights and interests are good against the world and will therefore bind a future purchaser
Can and how can personal right be transferred?
- Personal rights cannot be transferred to anyone else, and are only binding on the two original parties
- Personal rights are only valid between the two original parties, for example a right granted by contract to extract minerals
What does section 1 Law of Property Act 1925 include?
(1) Legal estates- freehold and leasehold
(2) Legal interests and charges- easement and mortgage
(3) Equitable interest- everything else (eg. Trust, restrictive covenant)
What is an tenure?
- A tenure involves the notion of one person holding rights in land from someone with a greater set of rights
- In technical legal terms, all property rights in land in this jurisdiction are still held from the Crown, the ultimate owner
What are the four dimensions of estates in land?
- English land law encompasses a very important element which is TIME.
- An estate in land is a time in the land, or land for a time
- Freehold has no end date; a leasehold estate always does; when it come to an end the rights in that property revert to the freeholder
How are proprietary rights in land created?
- A leasehold estate is created by the freeholder of the land ‘carving out’ a lesser right in the freeholders land
- Property rights cannot be created at the will and pleasure of the owner of property (Hill v Tupper (1863)
- the law should not allow ‘the creation of an infinite variety of interests in land’
Hill v Tupper (1863) 159 ER 51
- The plaintiff was granted lease of land on the side of Basingstoke canal by the canal company. The lease gave the plaintiff the sole and exclusive right to put pleasure boats for hire on the stretch of land.
- The defendant put his own boats for hire on the canal, disturbing the plaintiff’s business and causing him loss of profit
A third party right affects land belonging to someone else, examples include:
- a right of way (an easement)
- a mortgage
What is an easement?
- an easement is a right over one piece of land of the benefit of another piece of land (e.g. a right of way, a right to park, a right to use a drainage channel, etc)
Re Ellenborough Park [1956] Ch 131
- EP was a park in Weston- super-mare which was owned jointly by two tenants. The park stood opposite a row of house, the owners sold part of the park in order for more houses to be built.
- Along with this sale, the builders received rights to specifically “the full enjoyment at all times hereafter in common pleasure of the ground”.
- The owners of the houses which had those attached rights applied to have their rights recognised as an easement.
- The claimants needed their rights to be recognised as an easement as this would grant them the necessary property rights, as opposed to a licence which does not imply such rights.
