L8 - Ownership in English Land Law Flashcards
Main argument
technically possible to be ‘the owner’ of land under English Land law, but notion of ownership not v helpful / rather confusing when it comes to understanding functioning of English land law
Outline
I. Defining ownership
- instinctive idea of absolute dominion must be qualified
- bundle of rights v right to exclude
II. Compatibility w/ English Land Law
- tenure
- estates
- no action to vindicate it (Swadling)
- relativity of title (Megarry & Wade)
Defining ownership - instinctive idea of O
= absolute dominion over a thing (RL) : right to do whatever one want with it (use alienate abuse destroy)
Defining ownership - qualifying instinctive idea of O
Right to land is always subj to restrictions (eg nuisance & planning permission) => has to be qualified
No absolute right to anything under any legal system -> always qualified by prohibition on using things in a manner harmful to others
Defining O - bundle of right view
Harris, Honoré (among others) : conception of ownership as an ‘open ended set of use-privileges and control-powers’ = ‘bundle of rights’
Defining O - right to exclude view
McFarlane : idea that ownership / property rights are best understood as a right good against the whole world to exclude others from a thing
Defining O - BOR v RTE
the 2 are not mutually incompatible
For A to be able to do what they like w/ a thing (excercise rights from the bundle), needs to be able (at least initially) to exclude ppl from it => right to exclude is a necessary feature of O
BUT right to exclude is not a sufficient feature for there to be O : eg tenant under weekly tenancy wouldn’t really be considered ‘the O’ of a flat, despite his right to exclude => need for some degree of permanence and durability
Defining O - Honoré’s account
= 11 features of the ‘standard’ case of O (memorise) - together sufficient, not all necessary (although some are)
=> a ± flexible defº of O : needed to fit w/ English land law, but bcs of that very flexibility, notion is not that clear or helpful
Defining O - Honoré’s account - the 11 features
1) Right to exclude the rest of the world
2) liberty to use at one’s discretion
3) right to manage = determine who can use it and how
4) right to income / fruits
5) right to capital = right to alienate (for value) + liberty consume / waste / destroy
6) right to security = immunity against eviction (HR)
7) unlimited transmissibility
8) absence of term
9) duty not to use in a manner harmful to others
10) liability that the thing be taken away to repay a debt
11) residuary character (if incumbered, come backs once encumbrances end)
Compatibility - Tenure - the argument
all land in England and Wales is held on tenure = granted by the Crown => only the Crown (if anyone) owns land
Compatibility - Tenure - response (4)
in practice, tenure is not incompatible with private ownership of land (Rostill) :
main remaining feature of tenure = escheat : land reverts to the crown when the fee simple estate in it ends
=> existence of escheat doesn’t mean that the crown = the owner of all land : all it has is a residuary right to it unless and until the land escheats (which rarely happens in practice) no right to exclude or manage or abuse (that would be HR violation, A1P1 and possibly art 8)
vs holder of fee simple does have the rights on the list despite escheat
Compatibility - Estates - the argument
In English law, it is only possible to own an estate in land (as in a ‘slice of time), not the land itself
Compatibility - Estates - response (3)
(R) Still doesn’t mean there can’t be effective ownership of land in practice => eg unencumbered freehold
BUT does show that not so helpful in practice
=> consider more complex sitº: eg A freeholder grants 30y lease to B who grants monthly tenancy to C
=> each has rights which correspond to some features of O, O seems to be ±split among them, diff to describe a single one of them as the owner
+ trying to figure out who comes closest to being ‘the owner’, or if several of them can own at the same time won’t really get us anywhere in practice – what matters = who has what rights against whom (and for how long), not who can be called ‘owner’
Compatibility - action - the argument
Swadling : no equivalent to RL vindicatio = no way of asserting ownerhip as such in ELL
Compatibility - action - response
(R) Just bcs O can’t / is never required to assert his ownership as such doesn’t mean that he isn’t effectively the O of the land (eg unencumbered freeholder)
BUT again ag does show that O not v helpful in practice