land law, the concepts of land. Flashcards
What is land law concerned with?
Land law is concerned with land, rights in or over land, and the processes whereby those rights and interests are created and transferred.
What is land?
A bundle of rights which attach to pieces of land is a more sophisticated way to consider land.
What is the legal definition of land?
‘Land includes land of any tenure, and mines and minerals … buildings or parts of buildings and other corporeal hereditaments; also, a manor, an advowson, and a rent and other incorporeal hereditament, and an easement, right, privilege, or benefit in, over, or derived from land’.
Where is this legal definition of land found?
According to section 205(1)(ix) of the LPA 1925 (Law of Property Act).
What is at the heart of land law?
The heart of land law, is the idea that ‘land’ includes not only tangible, physical property such as fields, factories, houses, shops, and soil, but also intangible rights in the land,
What are examples of intangible rights in the land, what does this mean and include?
- Such as the right to walk across a neighbor’s driveway (a practical example of an easement),
- The creation of a ‘charge’ on land to secure a debt (a ‘mortgage’),
- The right to control the use to which a neighbor may put his or her land (a ‘restrictive covenant’) or
- The right to take something from another’s land, such as fish (being a ‘profit’ and another example of an ‘incorporeal hereditament’).
Therefore, what overall is land law the study of?
By legal definition land is both the physical asset and rights that the owner or owners may enjoy in or over it.
‘Land law’ is the study of the creation, transfer, operation and termination of these proprietary rights and the way they affect the use and enjoyment of the physical asset.
What is so special and different about ‘real property’ or ‘land law’ rights?
Because, whether land law rights are created by contract, grant, or some other method, they are capable of affecting other people, not simply the original parties which created the right.
Land law rights can attach to the land itself so that any person who comes into ownership or possession of the land may be entitled to enjoy the benefits that now come with the land.
Such as the right to possess the land exclusively, or the right to walk across a neighbor’s land to get to the highway.
What nature of land law is this understood as?
This is the ‘proprietary’ nature of rights and interests in land, it is very different from the merely ‘personal’ obligations that an ordinary contractual relationship establishes.
Another way of describing what land law is about is to say that it is the study of the creation and operation of proprietary rights, being rights that become part of the land and are not personal to the parties that created them.
What is the definition of a proprietary right in land?
A proprietary right in land law refers to a legal right that gives someone ownership or a significant interest in a piece of land, allowing them to use, possess and dispose of that land, which is enforceable against anyone, not just the person who originally granted the rights.
Generally, and with some necessary simplification for the purposes of exposition, ‘proprietary rights’ fall into two categories, what are these two categories?
Estates in land and interests in land.
The traditional starting point in a search for the ‘proprietary’ character of rights is the conceptual definition of ‘an interest in land’ put forward by the House of Lords in which case?
National Provincial Bank v Ainsworth (1965).
What are the case facts for National Provincial Bank v Ainsworth (1965)?
- In that case, the essential question was whether a wife’s right to live in the former matrimonial home could be regarded as a proprietary right given that she did not actually own a share of the property.
- If it could, the right might bind a third party such as the National Provincial Bank, which had a mortgage over the land and whose claim to possession might be defeated if a proprietary right existed.
- If, however, the right was purely personal – that is, enforceable by the wife only against the husband personally – it could never bind the land and the bank’s mortgage would necessarily take priority.
- The bank could take the house. In deciding that the wife’s right to live in the property could only ever be personal (assuming she had no actual share of ownership),
What did Lord Wilberforce state?
Lord Wilberforce, in his judgment, said that for a right to be considered a “proprietary” right (i.e., a right that affects land), it must meet these criteria:
- It must be clearly defined and understood – you need to know exactly what the right is.
- It must be identifiable by others – people should be able to recognise this right if they look at the property.
- It must be transferable to others – others should be able to take on or assume the right.
- It must have some lasting or stable quality – the right must be permanent, not something that can change or disappear easily.
Apply thid to the case, why was the wife not then considered to have a proprietary interest?
In the case, since the wife’s right to live in the house wasn’t clearly defined or stable in the sense of ownership, it was considered a personal right, not a proprietary one.
This meant the bank’s mortgage would take priority, and the wife’s right couldn’t stop the bank from taking the house.
Who developed the legal theory of a land ownership to be understood as ‘a bundle of rights’?
Honoré’s Bundle of Rights theory.
What is this theory in regard to rights and interests in land law?
A. M. Honoré’s “bundle of rights” is a legal theory that describes property ownership as a collection of rights and liabilities.
- In his work Honoré generally aimed to meat out what ownership may actually be in property.
- He viewed property as a bundle of rights, a group of sticks of potential rights or qualities over a property.
- Honoré gives a number of standard incidents of ownership such as,
The right to possess, (a leasehold)
The right to exclude, (exclusive possession)
Income, (carving out a leasehold interest from a freehold interest)
Transmissibility, (The ability to transfer property from one owner to another, the entire mechanics of our system is to facilitate transfer from owner A to owner B).
The bundle of rights is a metaphor that describes property ownership as a collection of legal rights
In land law, the “bundle of rights” theory refers to what?
In land law, the “bundle of rights” theory refers to the concept that property ownership is not a single, absolute right, but rather a collection of individual rights, often visualized as “sticks” in a bundle, which include the right to possess, use, exclude others, enjoy, and dispose of the property, allowing for the owner to exercise various powers and limitations depending on the specific rights they hold within that bundle; essentially, it means that the owner of land has a set of legal privileges associated with their ownership, which can be separated and transferred individually depending on the situation.
‘Before we Begin. Five Keys to Land Law’, P. Birks in Land Law Themes and Perspectives, (eds)
‘Before we Begin. Five Keys to Land Law’, P. Birks in Land Law Themes and Perspectives, (eds)
The Socio-Historical Context
The Socio-Historical Context
Over time, how has the image of land changed?
The image of land tied into one family is therefore out of date. Among the technicalities of land law we shall briefly encounter the phenomenon of
‘overreaching’ which enables interests to be detached from the land and attached instead to the money obtained by selling it.
Such mechanisms vividly illustrate the shift towards treating land as just another tradeable asset. The policy is to keep the land itself as easily tradeable as possible.
T H E F I V E K E Y S
T H E F I V E K E Y S
The five keys have one-word tags, what are they?
Time, Space, Reality, Duality, and Formality.
There is a pervasive theme which has its own label, what is this?
Facilitation.
land law is primarily facilitative, why?
Because it can be seen as facilitating the
achievement of goals which people routinely want to achieve. It helps very much to keep in mind what landowners and would-be landowners are
likely to want.
What sort of property rights will they want to grant or to acquire?
However, the theme of facilitation can never free itself from the
counter-theme of what?
Inhibition.
What proprietary interest in land demonstrates inhabitation?
Restrictive covenants, as property rights, are a relatively new invention. But there are millions of restrictive covenants, against building or, say, against erecting more than one house, or against using premises for the purposes of trade or commerce. But this kind of thing has
to be kept under control.
when reasonable, the law may facilitate, on the other hand it may inhibit.
What must land law do?
The law must facilitate, but it also has to inhibit, in order to achieve a reconciliation
between conflicting interests.
TIME
TIME
In what manner is there a powerful urge to deal with land in the sence of time?
Although bits do occasionally wash away or slip into the sea, land is in general permanent. For most human purposes we have to regard it as lasting for
ever.
There is a powerful urge to deal in slices of time.
Why do people want to deal in slices of time?
What is the first motivation?
The commercial motivation.
what is meant by the commercial motivation?
Commercial motivation means, in plain words, the desire to get money out of land.
What is one way to get money from land?
The most extreme
method of all is to sell one’s whole interest in the land.
That means selling
the whole slice of time over which one has control.
what is the commercial motivation for dealing in lesser slicees of time?
The commercial motivation for dealing in lesser slices of time is to realize in money some of the value of the land without giving up one’s wholeinterest. The lease is the proprietary interest which most obviously facilitates this. I might let my land for a fixed number of years.
If I go for that option, I have further choices. I could take a single capital sum, or I might prefer a flow of income in the form of an annual rent, or a mix of both.
In this manner, what remains?
Whichever I choose, the fee simple remains mine, though occluded by the lease. When the ten years have passed, the shadow occluding my interest will vanish, and my fee simple will once again be unencumbered.
Why do people want to deal in slices of time?
What is the second motivation?
The family motivation
The primary non-commercial motivation for dealing in slices of time is concern for one’s family, why?
The idea of benefiting the different gen-
erations of one’s family is perfectly natural. The desire to keep land permanently in the family or part of the family has been a routine temptation.
Since the great reforms of 1925, anyone want-
ing to deal in slices of time other than leases, and less than for ever, has had to do it how?
In equity, behind the curtain of a trust.
In front of the curtain what are the only two choices?
In other words, in front of the curtain there are now only two slices of time known to the law, ‘for ever’ and the lease for whatever time is agreed. All other slices of time once
recognized directly by the common law have been abolished.
Time is a good way to measure land, why?
In land law an estate is a slice of time. The doctrine of estates is
the learning which tells you what slices of time the law allows or has
allowed a landowner to deal in.
The common law, in the narrow sense in which it is contrasted with equity, has since 1925 recognized only two estates, what are they?
- The fee simple (freehold estate).
- The lease
(leashold estate).
That does not mean that all dealing in slices of time
shorter than ‘for ever’ has to be done through leases. What does it actually mean?
It means only that,
within what is permitted by the rule against perpetuities, all other manipu-
lation of slices of time has to be done in equity, behind the curtain of a trust.
SPACE
SPACE
In terms of space, how does Birks consider space?
We tend to think of land as what is on the surface.
Birks encourages us to think of land using the tubes, which we can insert into land, demonstrating the ownership of land with free hold brings with it everything that is below the surface and above it in terms of ownership.
REALITY
REALITY
In the technical language of the law ‘real’ never denotes the opposite of ‘illu-
sory’ or ‘fake’. It is usually an anglicization of the adjective from res, which is
Latin for what?
‘Thing’
Hence, ‘real’ always indicates that something has some quality of or relation to a thing.
Very importantly, there is a difference between the ‘reality’ which is
indicated in the contrast between real and personal property and the ‘real-
ity’ indicated in the contrast between real and personal rights.
which distinction is of more importance in the modern world?
Though the
distinction between real and personal property is ancient and venerable, it
is nowadays far less important than the distinction between real and personal rights.
What is the key proposition in land law reagarding realty?
The key proposition is that land law is, centrally, the law
of real rights in land.
A fee simple is similarly a real right in land, the greatest of all.
How are real and personal distinguished it their latin labels?
‘Real’ and ‘personal’ here anglicize the Latin labels in rem and in
personam. Many people prefer to use the Latin labels. The Latin tells us that a right in rem is a right in or against a thing, while a right in personam is a
right in or against a person.
DUALITY
DUALITY
what does birks mean by dualty in regard to law and equity?
Birks acknowledges that the duality between legal and equitable interests is not without its challenges. However, he suggests that the conceptual duality (i.e., thinking of rights in land as either “legal” or “equitable”) is useful and helps avoid the need to ask difficult questions about what equitable rights truly are.
If we were to discard this duality and try to fit everything into a single conceptual framework, equitable interests might be seen as “weak” or “flexible” proprietary rights, but Birks cautions against exaggerating these characteristics.
In conclusion, what does Birks reflect here?
Birks is reflecting on how equity and common law, while unified in modern courts, continue to play distinct roles in land law, particularly through the mechanism of trusts. Equity’s flexibility allows it to adjust to situations of unjust enrichment, wrongs, and relationships that the common law cannot easily accommodate, especially when it comes to land ownership and interests. However, the vulnerability of equitable rights, especially in transactions with bona fide purchasers, presents ongoing challenges. The duality between legal and equitable rights remains essential in understanding land law, even though it is conceptually complicated.
what does Birks mean by dualty in regard to tenure in his passage?
In this passage, Peter Birks is explaining the historical development of land tenure and how it still affects modern property law, especially with respect to the distinction between freehold and leasehold
What is the historical concept of tenure?
Feudal System: After the Norman Conquest in 1066, all land was theoretically owned by the king. The king would grant land to tenants in chief in exchange for military and other services. These tenants would then grant land to others (called subinfeudation) in return for similar services, creating a hierarchical structure—a feudal pyramid—of landholding and obligations.
Tenure: In this system, tenure referred to the way in which land was held (the “service” or relationship between the tenant and the lord). For example, land could be held in exchange for military service or other duties.
What was subinfeudation?
Subinfeudation: This was the practice where a tenant who held land from a lord would then grant part of that land to another tenant, creating further layers in the feudal system.
This was prohibited in 1290 by Edward I, who mandated that alienation (transferring land to another) could only happen by substitution.
This meant that the original tenant would step out of the pyramid and place a new tenant in their position, rather than creating a new layer beneath them.
While the feudal system and the idea of service to a lord have long been abolished, vestiges of tenure remain in modern property law. Birks focuses on two aspects: what are they?
All land is technically held of the Crown: Even today, all land in England and Wales is considered to be ultimately held by the Crown, though in practice, this does not involve any real services. This means that technically, the Crown is the owner of all land, and all land is held from the Crown by a notional tenure. The fee simple (the most complete ownership of land) is held of the Crown by a notional tenure that involves no actual services or obligations to the Crown.
The distinction between freehold and leasehold: This is where Birks connects the historical concept of tenure with modern land law.
Birks is explaining how the old feudal system of tenure shaped modern property law, and how remnants of that system continue to influence how land is held today. Freehold land represents full ownership held from the Crown, while leasehold represents a lesser interest in the land, which is held from the freeholder.
The historical distinctions between these two types of tenure still underpin the legal concepts of freehold and leasehold in the modern law of land ownership.
FORMALITY
FORMALITY
What is The Concept of Formality in Land Law?
Formality refers to the legal requirement to follow prescribed steps or procedures when dealing with land transactions, such as contracts, conveyances, deeds, or registration. These steps might seem inconvenient but they exist for important reasons.
Birks uses the example of formal requirements in land transactions—for example, contracts to convey interests in land must be in writing, and land conveyances traditionally had to be executed through a deed. Deeds must be formally executed (e.g., signed, sealed, and witnessed).
These formal requirements help to ensure that legal rights are clearly established and protected, reducing confusion or fraud.
What is the purpose of formality?
Formality serves several purposes:
Certainty: By ensuring things are done according to prescribed formal steps, the law provides certainty and clear evidence of the transaction.
Protection: Formalities help avoid disputes over what was agreed or intended, and protect parties against fraud, misunderstanding, or reliance on informal promises.
Protection of third parties: Formalities ensure that third parties (who might be unaware of informal agreements) are not unfairly affected by informal land dealings
What is the problem with real rights being invisible?
Real rights (such as a fee simple or easement) are not visible in the same way physical property is. A right to cross someone’s land or to restrict building on land isn’t something you can physically see. This makes it more difficult to know what rights exist over land unless they are documented and registered.
The Tension Between Formality and Flexibility, what does birks acknowledge?
There is an inherent tension between the need for strict formality and the desire to avoid unjust outcomes in cases where someone has made an effort to follow the right procedure but made an innocent mistake or failed to meet the exact formal requirements (e.g., missing a step, using the wrong type of paper, or failing to register an interest).
Formal requirements are essential for certainty and to avoid a breakdown of the system. But what happens if someone is mistreated or disadvantaged because they didn’t follow the rules precisely? Birks acknowledges that there needs to be a balance: you can’t just allow informal transactions to count in every case, but it is harsh to penalize someone entirely for failing to comply with a minor formality.
The Issue of Bona Fide Purchasers, so then why is formality so important?
Bona fide purchasers (buyers who acquire land in good faith and for value) are often given special protection in land law. If you buy land in good faith, you should not have to worry about hidden, unregistered interests or claims against the land.
If you made an informal agreement with someone, but the transaction was not formalized (e.g., through a deed or registration), your informal interest might be vulnerable to a bona fide purchaser—someone who buys the land from the seller and has no knowledge of your informal agreement.
concluding birks concepts on formality, overall what does he state?
Birks is discussing how formality in land law serves to maintain certainty, transparency, and protection in land transactions, while also acknowledging the difficulties and conflicts that arise when someone has not strictly adhered to formal requirements. The tension lies in how rigid the law should be in enforcing formalities, versus how flexible it should be in recognizing informal agreements or exceptions that might arise due to human error or unforeseen circumstances. Ultimately, the law tries to strike a balance between maintaining order and protecting individuals who may have made an honest mistake but did not follow all the required formal steps.
Which case almost supports Birks tubes of ‘space’?
Grigsby v Melville 1974
What does Grigsby v Melville 1974, remind us?
This Court of Appeal authority reminds us that on the face of it a person (the owner) owns everything above and below a parcel of freehold land.
This means that there is no definitive answer as to who “owns” what in the Birks tube sense until a person knows exactly what is under the land and how old that material is.
The extent of land and Grigsby v Melville 1974, what were the case facts?
- The claimant owned a semi-detached house.
- The house had originally been part of a larger detached house with single ownership which had then been divided in two.
- The claimant purchased half the property, and the defendant purchased the other half.
- The house had a cellar.
- The entrance to the cellar was on the defendant’s property and the cellar ran under the claimant’s property.
- The defendant had been using the cellar.
- The claimant sought an injunction to prevent him from using it and storing his things in the cellar he has access too.
- The cellar belonged to the claimant.
In this case, what did LJ Stamp state?
Stamp LJ: ‘It is, however, axiomatic that a conveyance of land carries with it all that is beneath the surface’.
What are other statutes helping us understand the extent of land?
There are limits to that of what you own beneath your land.
Case of Mines (1567) 1 Plowd 310
Petroleum Act 1998
Coal Act 1938
Treasure act 1996
Civil aviation act 1982 - Makes us think about space above the surface – no trespass for planes.
Environmental Protection Act 1990 - Register of contaminated land
Town and Country Planning Act 1990 - Planning permission!
Water Resources Act 1991- Mine water is very damaging.
