L1: Introduction Flashcards
Definition of land
s295 LPA 1925: Land includes land of any tenure (either freehold or leasehold), 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; and mines and minerals include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same… and manor includes a lordship, and reputed manor or lordship; and hereditament means any real property which on intestacy occurring before the commencement of this act might have devolved upon an heir
Does the airspace above land come within the definition of land?
Bernstein v Skyviews- limited (upper v lower airspace). A landowner only controls height necessary for ordinary use and enjoyment of their land
Kelsen v Imperial Tobacco
The defendant owned the freehold in premises from which he ran a tobacco business.
He leased part of the premises to the claimant from which he ran a tobacconist shop and had a flat in which he resided.
The defendant erected a sign that protruded into the claimant’s airspace by four inches.
Sign protruding into neighbours airspace=trespass
Fixed objects can trespass into airspace (no damage/loss necessary)
Bocardo v Star Energy
Mining under another’s land = trespass unless its beyond the depth which is beyond the scope of potential access
What are corporeal hereditaments?
Tangible Property
What are fixtures?
Land- a piece of equipment or furniture which is fixed in position in a building or vehicle.
What are chattels?
Items of property that is not land
Do fixtures pass with property under the sale of that property?
Yes- s62 LPA 1925
How do parties decide which fixtures pass under the sale?
Common for parties to contract on what counts as a fixture (as terms)
What is the twofold test the courts use to determine whether something is a fixture or chattel?
Degree of annexation & purpose of annexation
What is meant by ‘degree of annexation’?
How permanently fixed an item is to the ground- the more strongly an item is fixed to the ground, increased likelihood it is regarded as a fixture
What is meant by ‘purpose of annexation’?
Whether an item was intended as long-term improvement to the land
Elitestone v Morris
- Chalet resting on its own weight
- Not fixed to the ground
- Occupiers needed protection under security of tenure legislation
- To have protected tenancy, chalet needed to form part of the land
- purpose of annexation took precedent
- Even though the chalet was not affixed to the land, it was so difficult to move that you would need to totally destroy the chalet to move it
D’Eyncourt v Gregory
If the item in question forms part of the architectural design, intended to be a permanent improvement to the land -> fixture
What if the two tests give different answers?
The purpose test will prevail hamp v bygrave
Parker v British Airways
original owner of an item has best claim, if the owner cannot be found ownership depends on the nature of land and indications as to whether the landowner intended to control such objects
What if an item is found in a public place?
Onus on the landowner to indicate to the public that they desire to control the land & items found on it via signage (items found on the property of…)
What about items buried in land?
automatically property owner’s Waverly BC v Fletcher
Waverly BC v Fletcher
brooch found underground with metal detector
ownership of brooch went to council, who owned the land
What is the study of land law for?
the study of proprietary rights in land- the creation/transfer/operation and termination
the ways they affect the use/enjoyment of the physical asset
What is a proprietary right?
Right in the property itself (in rem)
enforceable against the land
puts you in control
has the ability to bind third parties
Whats a personal right?
rights in personam
king v david allen & sons
given a licence (personal right) to place posters in cinema
cinema owner transferred ownership of cinema to a third party
tried to assert their right to continue putting up posters
denied the right- lacked a proprietary right in the cinema
What are the different categories of proprietary rights?
Ownership-type (freehold/leasehold)
Lesser rights (easement/mortgages)- own the right not the land
Possessory rights (adverse possession)
Licences (not proprietary)
Manchester Airport v Dutton
Environmental protestors invaded NT property, licensed for tree felling to manchester airport
NT not willing to bring eviction proceedings
FEll to manchester airport to evict protestors
MA only had a licence- not usually possible to get an eviction notice
Courts interpreted relevant statute to give MA priority
Why are formalities important?
You don’t want to create proprietary rights by mistake
What are formalities?
The documents/transaction process you need to create or transfer proprietary rights in land
Which forms can formalities take?
Paper or electronic processes
What are the consequences of improper formalities?
Generation of rights likely to be ineffective
Can proprietary rights arise even if they are created improperly?
May still have status at equitable level or implied by the courts/statute
How can proprietary rights be guaranteed?
Through express creation
How can proprietary rights arise informally?
Implied rights of way
adverse possession
implied trusts
proprietary estoppel
informal leases
Why do you need to know which rights exist over a piece of land?
Rights may be binding on 3rd parties- may be asserted against all future owners
How can you work out what rights you have over a piece of land you’re buying/whether they will bind you?
All land is registered/unregistered
system of rules operate to give the purchaser a notice of rights existing over the land
within the doc, details of transaction relating to title, details of rights, encumbrances exist
What is the purpose of registering land?
Has the effect of being able to see all the rights affecting the land
How can you protect yourself if rights are not mentioned on the title?
by inspecting the land
by examining title doc itself
standard enquiries are made, intended to flush out hidden rights
What is land?
Both the physical asset and the rights the owner may enjoy over it
What are examples of intangible rights in land
Right to walk across a neighbours driveway (easement)
Creation of a charge on land to secure a debt (mortgage)
Right to control use to which a neighbour may put his land (restrictive covenant)
right to take something from anothers land
What is the relationship between contract law and land?
many transactions concerning land/intangible rights occur via contracts
- land sold through a contract
- mortgage is a contract of debt between lender and landowner
-lease is the right to enjoy exclusive possession of another’s land for a defined period; may be given by a contract
What is a deed?
Grants formal rights
How does a contract bind parties to it?
may require parties to complete the transaction by executing a deed
- contract merges with the grant and ceases to have a separate legal existence
can parties proceed without concluding a formal contract?
yes- they may proceed directly ‘by grant’ or deed
How are deeds/contracts enforced?
contract- by action for damages/specific performance
deed- relying on covenants contained in the deedC
Can property rights attach to the land itself?
yes- capable of affecting other people, not just the persons that originally created the right
what is the effect of property rights that have attached to the land itself?
any person coming into ownership/possession of the land is entitled to enjoy the benefits that now come into the land or subject to the burdens imposed on the land (e.g. not to interfere with neighbour’s right of way)
How can proprietary rights be categorised?
Estates in land & interests
What is an estate?
Confers right to use & control land for a slice of time. Type of estate owned defined the time for which use & control of land lasts
What is the freehold estate?
Fee simple absolute in possession. Right to use and enjoy land for the duration of the life of the grantee (current owner) and that of his heirs/successors
How is the freehold estate transferred?
By gift/sale or on his death (by will/rules of intestate succession)
How long is the estate owner entitled to enjoy the land?
For the duration of his life & that of his successors
What happens if the current freehold owner has not transferred the land during their life & dies leaving no will or next of kin?
Land goes to the crown
What is the leasehold estate?
The right to use and enjoy land exclusively as owner for a defined period of time
What is the owner of a leaseholder referred to as?
Leaseholder, Lessee, Tenant
How is a leasehold created?
Carved out of a freehold/another leasehold, provided the term of the new lease is fixed at less than the estate out of which it is carried
What if the freehold terminates prior to the leasehold period?
The lease also terminates
How can one determine whether a proprietary right is legal/equitable?
What is the nature of the right? What does the right entitle a person to do on the land?
Which 2 issues are to be addressed when determining whether any given proprietary right is legal or equitable?
Is the right capable of existing as a legal or equitable right? Has the right come into existence in the manner recognised as creating a legal/equitable right?
Which statute defines the rights capable of being legal?
S1 LPA 1925
S1 LPA 1925
1) The only estates in land which are capable of subsisting or of being conveyed or created at law are
a) an estate in fee simple absolute in possesion
b) a term of years absolute
S2 LPA 1925
2) The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are:
a) an easement, right or privilege on or over land
b) a rentcharge
c) a charge by way of legal morgage
e) rights of entry (annexed to a legal lease or legal rent charge)
S3 LPA 1925
3) All other estates, interests and charges in or over land take effect as equitable interests
What are the only interests capable of being legal?
easements & associated rights to enter anothers land and take produce
mortgages
rights of entry
What are the only equitable rights?
Fee tail
life interest
other interests (restrictive covenants, option, preemption)
proprietary estoppel
What are the creation of legal/equitable rights depend on ?
Whether the formality requirements for its creation have been observed
What is the purpose of equity?
Prepared to enforce rights when it is equitable to do so notwithstanding lack of proper formality
What is the formality for legal rights?
1) Created by a deed
2) Registered
What is a deed?
A written document going beyond a mere contract
Which statute lists the requirements of a deed?
s1 LP(MPA) 1989: An instrument is not a deed unless:
- its clear on its face that it is a deed (by words or otherwise)
- executed as a deed by signature, witnessed with the delivery of he deed
Which proprietary rights can be legal without the need for a deed?
- leases of 3 years or less
- where an easement arises by prescription (long use) or title acquired by adverse possession in unregistered land
What is meant by registering?
Entered on the register (substantively registered) vs recorded to protect the interest (protective registration)
What is the consequence of failure to register?
Renders the relevant estate/interest equitable even if it has been created/transferred by deed s7, 27 LRA 2002
When is a proprietary right equitable?
1) Excluded from the definition of a legal estate/interest s1 LPA 1925
2) No deed used where such is required
3) Despite being within s1 & the use of a deed, substantive registration has not occured
What are the formality requirements for an equitable property right?
use of written instrument:
- comprehensive written contract (signed by or on behalf of the parties to the contract s2 LPMPA 1989)
- by written instrument signed by the person creating the equitable right s53 LPA 1925
What happens in the event of failure to use written instrument where required?
Intended right does not exist as a right in property
unwritten agreement may still be enforceable (personal right to use land e.g. licence)
What about oral contracts supported by part performance and arising before the entry into force of LPMPA
Can create equitable right
What is the trust?
Possible for property to be owned by 2 people at the same time
1 person = legal title and the other equitable title
- A holds land on trust for B
different rights and duties can be imposed on A for the benefit of B
What are the formality requirements for a trust
Must be manifested and proved by some writing- s53(1)(b)LPA 1925
What is a title?
contains details about:
- type of estate
- who owns it
- other rights affecting the land (e.g. mortgage)
brings certainty & stability- who owns the land & how rights can bind 3rd parties
Which statute governs registered land?
