General

Question 1

Definition of ‘land’ in s. 205(1)(ix) of the Law of Property Act 1925 (LPA 1925)

Answer 1

‘Land’ includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land.

Question 2

Airspace

Answer 2

The common law has long distinguished between two different strata: the lower stratum and the upper stratum. The lower stratum refers to airspace ‘to such height as is necessary for the ordinary use and enjoyment of … land and the structures upon it’.13 The upper stratum refers to the airspace above this height. A landowner’s rights are limited to those of the lower stratum. (See Leigh v Skyviews)

Question 3

Subsoil

Answer 3

The owner of land will usually also own any man-made and natural space below the land which is actually capable of being owned. These subsurface spaces will normally be so owned even if they have been created by another party and even where the landowner is not in fact able to access them.

Question 4

Mines and minerals

Answer 4

At common law, an owner of land is said to be entitled to ‘all mines and minerals’ within the land (Note, however, the vibrant debate around changes to trespass law under the Infrastructure Act 2015 which, subject to conditions, permits fracking firms to drill under homes without prior permission) position has been qualified by the court and by statute which have carved out certain exceptions. Any coal, natural gas, and oil beneath the land, for example, are deemed by statute to be property of the Crown.22 The same is true of any unmined gold or silver found in mines on or under land.

Question 5

Water

Answer 5

The position as to water is rather technical. Water which passes over or flows through land cannot be owned. If you own land which is, in part, covered with water, you also do not own this water. There can be ownership only as to very small volumes of water for agricultural or domestic, household purposes. If you wish to extract greater volumes of water, you need a licence granted by the National Rivers Authority.

Question 6

Flora and fauna—trees, plants, flowers and wild animals:

Answer 6

Land is taken to include all the trees, plants, hedges, and flowers growing, whether they have been cultivated by the landowner or have sprouted up and grown wild on the property. Perhaps macabrely, the position for wild animals depends on whether they are alive or dead. When wild animals are alive, the landowner has only ‘qualified’ property rights over them. This gives the landowner the right to catch and kill the animals on their land. Once wild animals have been caught and killed, the animals become the absolute property of the landowner.

Question 7

Items found on Land

Answer 7

If an item is found on the land, who owns it? The finder or the landowner? When considering the ownership of ‘finds’, as they are sometimes termed, a distinction is drawn between those items found on the land and those found in or attached to the land. Where an item is found on the land, the finder will be able to claim ownership of the item unless the landowner is able to demonstrate (a) that she has exercised sufficient control over the item, and (b) can demonstrate an intention to exercise this control: Parker v British Airways Board (1982). If an item is found in or attached to land, the general rule is that it belongs to the landowner: in Elwes v Brigg Gas Company (1886), a prehistoric boat found some 6 feet beneath the soil was held to belong to the landowner. In Waverley Borough Council v Fletcher (1995), a metal-detector enthusiast who found a gold brooch while searching through council land also failed in his claim to ownership of the item. The brooch, said the court, belonged to the council who owned the land.

Question 8

Buildings

Answer 8

Any building constructed on land which has its foundations set into the ground will almost certainly form part of the land.29 Where there are no such foundations, whether the building is part of the land will depend on the rules governing so-called ‘fixtures’ (see Elitestone v Morris)

Question 9

Fixtures

Answer 9

Any fixture is deemed to form part of the land. This much is simple. What is less straightforward is determining what is and is not a fixture. Fixtures are governed by a series of distinct legal principles and therefore warrant their own separate consideration. Under Elitestone case, key considerations are: (1) the degree of annexation; and (2) the purpose of annexation. In practice today, far greater weight is placed on the purpose of annexation than on the degree of annexation but we will consider both factors in turn.

Question 10

Proprietary Right

Answer 10

Ownership (whether sole or shared) allows the owner the right to deal with or dispose of the property at will, subject to various limitations concerning the type of property owned. An owner’s right in any property is said to be proprietary - A proprietary right is a right in the property itself, exercisable against the world should the property, whether with or without permission, ever be in the hands of another, an owner can usually insist on its return. The owner does not have to settle for damages if their ownership (i.e. their proprietary right) is withdrawn or taken.

Question 11

Personal Right

Answer 11

An owner may retain their ownership (i.e. their proprietary right) but allow another a lesser right of temporary possession or use. For example, a personal right, which is a right not in or to the property itself but against the person who grants you the right. If the owner’s revocation of the right amounts to a breach of contract, the holder of a personal right has the right to be awarded damages as compensation, but he/she cannot normally insist on remaining in or recovering possession. Furthermore, if the ownership changes hands, no action at all lies against the new owner for a breach by the former of any contractual commitment that they made.

Question 12

Land as a special case

Answer 12

Unlike other property, non-owners of land can have a proprietary right in it. What we own is not the land itself, but a right to possess the land. This is a very
powerful proprietary right. A proprietary right of possession, is called an estate in land.

Question 13

Freehold Estate

Answer 13

The highest possible estate in land is a freehold estate - known technically as the fee simple absolute in possession (S.1(1)(a) LPA). The word fee denotes that it is capable of being inherited, and the word simple that it can be inherited by any heir; if there is no direct lineal descendant, the heir can be sought from more distant relatives, for example siblings, parents, uncles and aunts, and their descendants.

Question 14

Leasehold Estate

Answer 14

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

Question 15

Define ‘freehold reversion’

Answer 15

The residue of the freehold owner’s estate after the granting of a lease is known as the ‘freehold reversion’. At the termination of the lease, physical possession of the land will automatically revert back to the freeholder.

Question 16

Interest in Land

Answer 16

An interest in land is a property right which does not confer any rights of ownership. An interest in land describes a right that someone enjoys over another’s land. The classic example is where one person enjoys a right of way across another’s land. This is known as an easement. Other examples of interests in land include mortgages, options, and restrictive covenants. The key feature of interests in land is that they are proprietary.they are enforceable not just between the original parties but also potentially against third parties, such as later owners of the land over which they operate.

Question 17

Legal or Equitable

Answer 17

Consider: Does the right fall within list of legal rights in s.1(1) and (2) LPA 1925?

Right will only be legal if within the list and if formalities for creation/registration are satisfied. Where attempt to create legal right or not within the list, right can (at best) only take effect as an equitable right.

Question 18

Creation of legal rights

Answer 18

Most legal rights must be created by deed. A deed is, in essence, a very formal, written document (usually a contract) that complies with certain strict formality requirements.

Question 19

Formation of a Deed

Answer 19

Under s. 1(2) of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989), an instrument is not a deed unless:

• It makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and
• It is validly executed as a deed by that person or, as the case may be, one or more of those parties. ( ‘Execution by deed’ means that the deed is signed and witnessed.)

Question 20

Creation of equitable rights

Answer 20

A right will be equitable:

1. If it is a right which is not capable of being legal under the provisions of s. 1 of the LPA 1925.
2. If there has been an attempt to create a legal right but there has been a failure of formalities, for example, not making use of a deed.
3. If there has been an attempt to create a legal right but there has been a failure to register the right as required.

equity does nevertheless generally require that writing be used for the creation of rights in land: either a written contract complying with the provisions of s. 2 of the LP(MP)A 198978 or under s. 53 of the LPA 1925. The requirement for writing recognizes that, although the right may be equitable and not legal, it still carries proprietary force. Even equity, with its more flexible approach, acknowledges the need for some measure of formality where the precious and unique commodity of land is involved.

Question 21

Is a right proprietary?

Answer 21

There is a process which you must go through to determine if a right being claimed is proprietary or not:

1) Is it on the list of recognised proprietary rights in land?
2) Does it satisfy any definitional requirements for the particular proprietary right?
3) Has it been created/acquired in accordance with the strict formalities?
4) Is it enforceable against a third party (i.e. a new owner of the burdened land)?

Question 22

Formalities for Transfer of Freehold Estate

Answer 22

1. Deed - Generally, all transfers of a legal estate must be by deed: LPA 1925, s 52(1).
2. The new owner must be registered on the national land register. He / she does not get the legal title (i.e. is not recognised at law as the new legal owner) until he / she is so registered: Land Registration Act (LRA) 2002, ss 4(1) and 27(1).
3. Any other formalities associated with disposition of land

Question 23

Other Formalities?

Answer 23

Contracts for the sale or other disposition of an estate or interest in land (‘land contracts’) require certain formalities.

LP(MP)A 1989, s 2 applies to all land contracts. All three of the following requirements must be satisfied to have a valid contract:
1. the contract must be in writing; and

2. it must contain all the expressly agreed terms; and
3. it must be signed by both parties. (note - Firstpost Homes Ltd v Johnson [1995] 1 WLR 1567 held that the typing or printing of a name does not constitute a signature.)

Question 24

Remedies for breach of a land contract?

Answer 24

1. Damages
2. Specific Performance (This is an equitable remedy and is therefore entirely at the discretion of the court.)
3. Injunction (this is a court order restraining somebody from doing something, including (but not limited to) breaching a contract - again, is equitable so is at discretion of courts)

Question 25

Registration - passing of legal title

Answer 25

In registered land, the legal title does not transfer (meaning the buyer is not recognised as the owner) until registration has taken place (LRA 2002, s 27(2)(a)).

In unregistered land, the legal title is transferred upon execution of the deed. The new owner must then register their ownership of the property on the land register within two months of completion, otherwise the legal title will revert to the seller (LRA 2002, ss 4 and 6).

Question 26

Registered Land

Answer 26

If land is ‘registered’, this means the land has been registered (recorded) at Land Registry. When this is done, each title is provided with a unique title number and information as to the owners of that land is also recorded. Once a person is registered as the estate owner, the State then guarantees their ownership. When the land is sold, that new owner must register the transfer at Land Registry and they will then become the new registered proprietor. Registered land today is governed chiefly by the LRA 2002 which presents a scheme for registration of estates and interests in land.

Question 27

Unregistered Land

Answer 27

By contrast, ‘unregistered land’ means that title to the land has not been registered (recorded) at Land Registry. With a small per cent of titles in England and Wales being unregistered, the unregistered principles are fast-becoming of diminishing importance. As already noted, in unregistered land, title is not to be found on any register but rather contained in the traditional, paper title deeds which comprise a bulk series of documents kept by the current owner and a purchaser has to search through these title deeds to investigate the ‘root of title’ to be sure of what they are buying.

Question 28

Three foundational principles of registration

Answer 28

the mirror principle, the curtain principle, and the insurance principle.

Question 29

Mirror Principle

Answer 29

The register is a mirror reflecting accurately and comprehensively the sum of all rights and interests affecting a title

Question 30

Curtain Principle

Answer 30

The register is the sole source of information for potential purchasers. Purchasers need not concern themselves with what lies behind the curtain and not with trusts

Question 31

Insurance Principle

Answer 31

The register is deemed to provide a true reflection of title and is guaranteed by the state. Should there be an error and loss is suffered, an indemnity (compensation is paid)

Question 32

Non-application of the doctrine of notice in registered land

Answer 32

Under the LRA 2002 regime, notice is no longer the means of determining the enforceability of proprietary rights in registered land. It is the fact of registration which determines enforceability. In other words, a purchaser of registered land takes that land subject to the estates, rights, and interests recorded in the register: whether or not a purchaser is bound by a pre-existing interest is to be determined by reference to the registered principles laid down in the 2002 Act and is not determined by how far the purchaser had knowledge or notice of that interest. Equally, whether she acted in good faith is also irrelevant.

Question 33

The four-group categorization of proprietary rights under the LRA 2002

Answer 33

Substantively registrable estates, Interests which although not substantively registrable must be completed by registration to be legal, Other third-party interests capable of protection on the register, ‘Unregistered interests which override’

Question 34

Substantively registrable estates

Answer 34

Only legal estates are capable of being substantively registered. Substantive registration means that these estates are registered in their own right, generate a separate title, and are provided with their own distinct title number. According to the scheme of the LRA, there are two legal estates which are capable of substantive registration: the legal fee simple (freehold) and the legal term of years (leasehold) granted for more than seven years.41 Where land is unregistered, the transfer of freehold land or the grant out of that unregistered land of a lease of more than seven years will constitute a ‘triggering event’ and the title must be registered.42 Where land is already registered, a transfer of a freehold estate or the granting of a lease of more than seven years out of the registered estate will constitute a ‘registrable disposition’ and the disposition must be completed by registration if it is to operate at law.43 Failure to complete with registration will mean the transferee can only obtain an equitable title in the land.

Question 35

Interests which although not substantively registrable must be completed by registration to be legal

Answer 35

Section 27 of the LRA 2002 Act lists a series of dispositions (dealings with land) which are ‘required to be registered’. These are dispositions of an estate or charge which has already been registered. The statute calls these ‘registrable dispositions’ and these dispositions can only operate at law if they are completed by registration and the ‘relevant registration requirements are met’. These registration requirements are provided in Sch. 2 of the Act. Examples of registrable dispositions include: the transfer of a registered estate, the grant out of a registered estate of a lease of more than seven years, or an expressly created legal easement or legal charges (mortgage).

Question 36

Other third-party interests capable of protection on the register

Answer 36

These are interests which are not required to be registered, cannot be substantively registered, and are not overriding interests but can, nevertheless, be protected by registering them against the estate they affect. By ‘protection’ we mean that, if registered, these interests will take priority—in other words, will be binding against successors. Under the LRA 1925, these interests were named ‘minor interests’. This terminology was very unhelpful and thankfully the LRA 2002 abandons it as it suggested that these ‘minor’ rights were insignificant. Not so. In fact, some of the most important rights affecting land fall into Group 3 of ‘interests capable of protection’ including many easements and covenants, as well as options to purchase. So, how do you ‘protect’ these interests? Protection is achieved by entering a ‘notice’ which ensures the priority of the right. If not registered, they will lose priority and will not be enforceable against a purchaser of the land they affect. Pretty much all property interests in land can be protected in this way except a few listed, excluded interests including interests under a trust; leases granted for three years, or less; and restrictive covenants between a lessor and lessee. The LRA 2002 saw an expansion in the number of third-party rights that could be protected by entry of a notice as part of the statute’s wider strategy to increase the rights reflected on the register.

Question 37

‘Unregistered interests which override’

Answer 37

These are interests which, although not registered and not appearing on the register, are nonetheless binding on any person who acquires an interest in registered land whether on first registration of land (voluntary or compulsory) or where there has been a registrable disposition of a registered estate completed by registration.51 These interests, which were known as ‘overriding interests’ under the LRA 1925,52 are provided for in Schs 1 and 3 of the LRA 200253 and include: short leases of seven years or less, implied legal easements, and the interests of people in ‘actual occupation’ of land.

Question 38

Voluntary first registration

Answer 38

Under s. 3, a number of proprietary rights taking effect as legal interests can be registered voluntarily as legal estates. These are given in s. 3(1)

Question 39

Compulsory first registration

Answer 39

The LRA 2002 contains a number of events that ‘trigger’ compulsory registration of previously unregistered titles. These ‘triggering events’ are contained in s. 4 of the Act and cover some of the most common dealings with land. This is entirely intentional as a means of capturing as many unregistered titles as possible to draw as much unregistered land as possible into the registered system. In effect, the events triggering compulsory registration are so widely drawn that any dealing with an unregistered legal estate will engage compulsory registration. Only where unregistered land remains static and is not subject to any dealing of any kind will it escape the tentacles of compulsory registration. Under s. 4, the following are the principal triggering events:

• The transfer of an unregistered freehold/leasehold with more than seven years to run.
• The grant of a lease for a term of more than seven years.
• The grant of a reversionary lease for any term where the lease is to take effect more than three months after the grant.
• The grant of a protected, first legal mortgage.

Question 40

Four classes of title

Answer 40

Absolute, Qualified, Possessory and Good Leasehold

Question 41

Absolute title

Answer 41

The ‘gold standard’ of title, absolute title is available for both freehold and leasehold land: absolute freehold, absolute leasehold. As to freehold, most first registered freehold estates are registered with absolute title: see s. 9(2) of the LRA 2002 as to freehold and s. 10(2) as to leasehold. Registration with absolute freehold title vests the estate in the proprietor subject only to entries on the register and to any overriding interests affecting the land. A person first registered with absolute leasehold is in an analogous position but with the additional caveat of being bound by express and implied covenants, obligations, and liabilities in the lease.

Question 42

Qualified title

Answer 42

Where there is some defect in the title, a qualified title may be registered: see s. 9(4) of the LRA 2002 as to freehold and s. 10(3) as to leasehold. Registration with qualified title has the same effect as registration with absolute title save that it is subject additionally to any estates, rights, or interests that are excepted from registration. For obvious reasons, qualified title is a far less attractive class of title and, in practice, is comparatively rare with Land Registry reluctant to grant it.

Question 43

Possessory title

Answer 43

Where there is insufficient documentary evidence of title (whether leasehold or freehold) on an application for first registration, a possessory title may be registered: see s. 9(5) of the LRA 2002 as to freehold and s. 10(6) as to leasehold. In practice, this class of title is only registered where the claim to the title is founded on adverse possession or the title deeds have been destroyed or otherwise lost. Registration with possessory title has the same effect as registration with absolute title save that it is subject to all and any adverse interest existing at the date of registration and not just interests for which there is an entry in the register and overriding interests. Registration with possessory title is far from ideal as the proprietor may find herself bound by undiscovered interests affecting the land.

Question 44

Good leasehold

Answer 44

Absolute leasehold title requires the Registrar to be able to verify the landlord/lessor’s title from which the lease was granted. This may not always be straightforward, particularly in cases of very long leases. As such, good leasehold title may be registered: see s. 10(3) of the LRA 2002. Registration with good leasehold title has the same effect as registration with absolute title save that it is subject to any estates, rights, and interests affecting the landlord’s freehold. In practice, good leasehold provides the proprietor with a strong title with the caveat, however, that the landlord’s freehold has not been verified.

Question 45

Registrable disposition

Answer 45

LRA 2002 provides that subsequent dealings with registered land must be completed by registration. These registrable dispositions are provided for in s. 27 of the LRA 2002. We need to consider both what constitutes a ‘registrable disposition’ but also its effect.

Section 27(2) lists the registrable dispositions.

Question 46

Formalities to create a Legal Lease (+7 yrs)

Answer 46

A Lease created for a period exceeding seven years must be created by deed and must also be registered in accordance with the LRA 2002, s 27(2)(b)(i) to be legal. This is a compulsory registration requirement, and if not done, the lease will only be recognised in equity i.e. a legal leasehold estate will not have been created (LRA 2002, s.27 (1)).

Question 47

Formalities to create a Legal Lease (3 - 7 yrs)

Answer 47

Leases for more than three years must be created by deed in order to be legal (LPA 1925, s 52; LP(MP)A 1989, s 1).
As they do not exceed seven years in length, such leases are not required to be registered but still take effect as legal leases provided they are created by deed (LPA 1925, s 52) i.e. there is no registration requirement.

Question 48

Formalities to create a Legal Lease (Less than 3 yrs)

Answer 48

Certain short leases, which fulfil certain conditions, have no formal requirements, yet they will still exist as legal leases. They need not be in writing: LPA 1925, s 54(2). The types of arrangement which fall within the ambit of this section are:

 short fixed term leases (those with a maximum term of three years or less);

 express periodic tenancies (where there is a tenancy agreement); and

 implied periodic tenancies.

Note that periodic tenancies whether express or implied will only fall within the ambit of LPA 1925, s 54(2) if each individual period of the tenancy is for three years or less, which is likely to be the case. The Law of Property Ac 1925, S.54(2) states that a lease with a term of three years or less need not be created by deed provided it:

 Takes effect in possession;

 Is granted at ‘best rent’ (which means ‘market rent’); and

 Is not subject to a fine or premium (meaning there is no upfront payment for the grant of the lease, which you could commonly expect to see with very long leases)

These short leases, whether created by deed or less formally under s 54(2), do not need to be registered to exist as legal leases