Nature of Land

Question 1

What is Land?

Answer 1

• The surface, buildings or parts of buildings;
• Other corporeal hereditaments; and
• Other incorporeal hereditaments on a piece of land.

LPA 1925, s. 205(1).

Question 2

What does Land Law concern?

Answer 2

Rights over land.

Question 3

What are the Two Types of Rights relating to Land?

Answer 3

• Personal.
• Proprietary.

Question 4

What are the differences between a Personal and Proprietary Right?

Answer 4

• Personal Rights can only bind original parties, whereas Proprietary Rights can bind third parties.
• Breach of the former can only award damages, whereas breach of the latter can award recovery of use or possession of the Land.

Question 5

What are the various Proprietary Rights?

Answer 5

• The Freehold Estate.
• The Leasehold Estate.
• An Easement.
• A Mortgage.
• A Restrictive Covenant.
• An Estate Contract.
• A Beneficial Interest in a trust of land.

Critically, simply because a right is on the list does not necessarily mean that, in the given context, it will have proprietary status. Such things as the right’s substantive characteristics, formality, and registration are all relevant.

Question 6

Which Proprietary Rights are Legal and which are Equitable?

Answer 6

Legal:

• Mortgages.
• Rights of entry.
• Easements granted for a certain time.

Equitable:

• Estate contracts.
• Freehold covenants.
• Beneficial interests in a trust of land.
• Easements granted for an ucertain time.

LPA 1925 – s. 1.

Question 7

What is a Freehold Estate?

Answer 7

A right of possession that lasts until the present owner dies without any blood relatives or disposing of it by will.

LPA 1925 – s. 1(1)(a).

Question 8

What is a Leasehold Estate?

Answer 8

A right of possession that lasts for a given term.

LPA 1925 – s. 1(1)(b).

Leaseholds fundamentally derive from Freeholds.

Question 9

What is a Mortgage?

Answer 9

Rights over land granted in exchange for debt, including the rights to sell and possess the land in case of default.

Question 10

What is an Easement?

Answer 10

A right to use land that does not belong to you.

Usually, this right is more limited than an frank right to use or enjoy.

Question 11

What is a Right of Entry?

Answer 11

Either:
* A Landlord’s right to re-enter a leased premises to end the Lease under prespecified circumstances; or
* A Rentchargee’s right to hold the Land if the money owed is unpaid.

The latter is highly uncommon, so assume the former by default. Also, Rights of Entry are not considered outside the context of forefeiture for assessment purposes; mortgages and easements are far more important to that end.

Question 12

What is a Restrictive Covenant?

Answer 12

A promise to withhold from doing a particular thing with or on the Land.

Question 13

What is an Estate Contract?

Answer 13

A contractual right to a legal estate, whether Freehold or Leasehold.

Although this is an equitable right, specific performance may be sought to effect the agreement in case of a breach.

Question 14

What are the Four Ways a Freehold Estate may be transferred?

Answer 14

• Gift.
• Will.
• Sale.
• Operation of law, e.g. bankruptcy.

Question 15

By what instrument are Legal Estates transferred?

Answer 15

The deed.

LPA 1925 – s. 52(1).

In practice, the relevant form is the TR1 perscribed by the Land Registry.

Question 16

What are the requirements of a valid Deed?

Answer 16

• It must be delivered, i.e. dated.
• It must be intended to be a deed.
• It must be validly executed, i.e. signed before a witness, who must also sign it.

LP(MA)A 1989, s. 1(2).

Question 17

What are the requirements of a valid Land Contract?

Answer 17

• It must be made in writing.
• It must be signed by, or on behalf of, both Parties.
• It must incorporate all expressly agreed terms between the Parties.

LP(MA)A 1989, s. 2(1)-(3).

Any variations must also comply with these requisites.°

° McCausland v Duncan [1997] 1 WLR 38.

Question 18

When does Title in a Legal Estate transfer?

Answer 18

Upon registration.

LRA 2002, s. 27(1).

However, with unregistered land, title only transfers upon completing the deed, after which the new owner must complete registration within 60 days.

LRA 2002, ss. 4, 6.

Question 19

What is the Equitable Effect of a valid Land Contract?

Answer 19

The creation of an Estate Contract, i.e. a proprietary right in equity, but only where specific performance is also available.

Walsh v Lonsdale (1882) 21 Ch D 9.

Question 20

What are the Three Types of Land Contracts?

Answer 20

• Option Agreements: A Third Party holds a right of first refusal in case of any sales.
• Rights of Pre-Emption: The Parties give themselves the right to transact within a given period.
• Sale (Lease) Agreements: The Parties commit themselves to transacting.

Question 21

What are the Trigger Events for Registration?

Answer 21

• Transfer of a Freehold Estate.
• Grant of a lease for over seven years or of a future lease.
• Grant of a legal mortgage over an estate with over seven years to run.

Question 22

What are the Three Principles of the Land Registration system?

Answer 22

• The Mirror Principle.
• The Curtain Principle.
• The Insurance Principle.

Question 23

What is the Mirror Principle?

Answer 23

The Register should reflect all matters that the Property has the benefit of and to which it is subject.

Question 24

What is the Curtain Principle?

Answer 24

The Register shall only record legal ownership of the Property, i.e. the legal title, not any equitable interests.

Question 25

What is the Insurance Principle?

Answer 25

The accuracy of the Register is guaranteed by the state.

Question 26

What is the Property Register?

Answer 26

Where one can find:
* A description of a Property;
* The nature of the estate; and
* Details of any proprietary rights benefitting the Property.

Question 27

What is the Proprietorship Register?

Answer 27

Where one can find:
* The class of Title;
* Details of the owner of the legal estate; and
* Any restrictions on the owner’s ability to deal with the Land.

Question 28

What is the Register of Charges?

Answer 28

Where one can find details of any burdens on the Land, e.g. a mortgage.

Question 29

What are the Four Classes of Title?

Answer 29

• Absolute: Flawless, only bound by registered and overriding interests.
• Qualified: Akin to absolute, but slightly defective. Extremely rare in practice.
• Good Leasehold: The Leaseholder’s title is clear, but the Freeholder’s is not.
• Possessory: The applicant is in possession or is in receipt of rents and no other class of title can be given.

Question 30

To what extent is the use of the Space above an Estate permitted?

Answer 30

To the extent necessary to allow for the ordinary use and enjoyment of the Land.

Kelsen v Imperial Tobacco [1957] | Bernstein v Skyviews [1978].

Question 31

To what extent is the use of the Space below an Estate permitted?

Answer 31

To the extent desired, as law permits, up to 300m below ground.

That said, all minerals, treasure, and coal found underneath shall not be their property.

Question 32

What are the Tests for determining whether on object is a Fixture?

Answer 32

• Degree of Annexation: The more firmly an object is fixed to the Land or building, the more likely it is to be a fixture.
• Purpose of Annexation: The more an object was annexed to enhance the Land or building, the more likely it is to be a fixture.

Berkley v Poulett [1977] 1 EGLR 86.

Purpose takes priority over Degree.

Question 33

To avoid unnecessary complexity regarding Fixtures and Fittings, what should the Parties do at the Pre-Contract stage?

Answer 33

Complete a Fixtures and Contents Form and incorporate it into the documentation.

Law Society Form TA10.