Nature of Land Flashcards
SUMMARY OF EVERYTHING
Difference between real and personal property?
- Real property = land
- Personal property = other types of property e.g. cars, TVs, shares
Different rules apply to both
Why is it technically incorrect to say we ‘own’ a piece of land?
All land in E+W belongs to the Crown, we own a right in the land
Land law is the study of proprietary/property rights in the land and responsibilities/duties in land related relationships
What is the difference between a proprietary and a personal right in terms of remedies?
- Proprietary - use/possession of the land can be recovered (can be enforced by an action in rem)
- Personal - can only be enforced by a personal action for damages (use/occupation cannot be recovered)
What is the difference between a proprietary and a personal right in terms of enforcement?
Proprietary rights can be enforced against TP, personal rights only bind the original parties to the right
What rights are capable of being proprietary?
I.e. what are the proprietary rights?
- The freehold estate
- The leasehold estate
- An easement
- A mortgage
- A restrictive covenant
- An estate contract
- A beneficial interest in a trust of land
Holder of proprietary right in land has a right to occupy/use/restrict what can be done with the land in some way
If a particular use of the land is recognised as having proprietary status, does this mean that the actual right under consideration will have proprietary status?
No - must look at nature, creation ad protection of rights in land to determine whether they are proprietary or personal
E.g. right to park car in neighbour’s garage may be an easement (proprietary) but the ability to do so will not always be an easement; same use could be either proprietary or personal depending on circumstances
How can the creation of a right tell us whether it is proprietary?
If there are formalities - most proprietary rights subject to strict requirements re formalities for their creation
What is meant by ‘owning’ a piece of land, if not the physical land itself?
Owning a right to possess the land
Powerful proprietary right
What is a proprietary right of possession called?
An estate in the land
Either freehold or leasehold
What is the freehold estate?
AKA the fee simple absolute in possession
A right of possession which lasts until the owner for time being dies without heirs (without blood relatives and without disposing of it by will)
The highest possible estate in land
Holder of frehold in piece of land = owner
What is meant by fee simple absolute in possession?
- Fee = capable of being inherited
- Simple = can be inherited by heir and includes distant relatives
- Absolute = not liable to end prematurely (not determinable or subject to a condition)
- In possession = fee simple owner has current right to use and enjoyment of property (physical possession not necessary; can receive rent if let)
Is the owner of the freehold free to sell it or give it away?
Yes - alternatively may grant away a lesser estate for a shorter period of possesion than their own (lease)
What is the leasehold estate?
Where a freehold owner grants a lesser estate of a certain duration
Estate granted in term of years absolute (leasehold)
Can be weekly, monthly, yearly, or centuries long
How is a sub-lease created?
Leaseholder (tenant) grants a lease of a lesser duration out of their own leasehold while retaining the original lease
What is the difference between the freehold reversion and the leasehold reversion?
- Freehold reversion = residue of the estate after the granting of a lease
- Leasehold reversion = what the residue is known as if grantor holds a leasehold estate (when lease ends the right to physical possession of land automatically reverts back to landlord)
What is meant by a hierarchy of rights of possession?
Same piece of land may simultaneously be subject to a freehold, a lease and a sub-lease - holder of each owning not the land but right to possession of land subject to the lesser rights they have granted for their particular ‘slice of time’
What is a commonhold?
A type of freehold created out of a freehold registered estate
* Designed to meet needs of owners of flats/apartments
* No overall landlord - just a freehold owner; a company called a commonhold association
* The owner of each flat is a member of the association
* The commonhold association is responsible for maintaining the communal areas of the building
Fewer than 50 blocks across E+W are commonhold properties
What is the difference between an estate and interests in land?
Are both proprietary rights
- Estate = right to possess the land (proprietary rights of possession)
- Interest = use or enjoy the land in some way (gives holder the right to do something/restrict what can be done on land)
Interests will be either legal or equitable
What is the difference between an interest and incumbrances on estate?
Nothing they are the same thing!!!
What is the recoverability and enforcability of an interest?
- Can be recovered (as an action ‘in rem’)
- Can be enforced against third parties (new owner of burdened land)
Very powerful proprietary interest
What are the legal interests?
The interests set out in s1 LPA
- Mortgages
- Easements (granted for a term equivalent to a freehold of leasehold estate [forever/certain term])
- Rights of entry
What are the equitable interests?
Referred to in s1(3) of the LPA which only take effect in equity
- Freehold covenants
- Estate contracts
- Interests in a trust of land
- Easements granted for an uncertain term
- Mortgage granted over an equitable interest in land
Why is the distinction between legal and equitable interests important?
- Remedies - legal interest means entitled to automatic damages without considering discretion of the case (+ equitable remedies) - an equitable interest means no automatic damages, is at discretion of court
- Enforcement