Nature Of Land Flashcards
What is the distinction between proprietary and personal rights?
The distinction is important for the remedy available to someone deprived of their right and the enforceability against third parties.
What is a proprietary right in land?
A proprietary right can be enforced by an action in rem, allowing recovery of use or possession of the land.
What is a personal right in land?
A personal right can only be enforced by a personal action for damages and does not allow recovery of use or occupation.
What are the rights that have proprietary status?
The rights include: freehold estate, leasehold estate, easement, mortgage, restrictive covenant, estate contract, and beneficial interest in a trust of land.
What must a right satisfy to have proprietary status?
A right must be on the fixed list of rights, comply with substantive requirements, and comply with formalities for creation.
What is an estate in land?
A proprietary right of possession is called an estate in land.
What are the two recognized legal estates?
The two recognized legal estates are the freehold and the leasehold.
What is the highest possible estate in land?
The highest possible estate is the fee simple absolute in possession, commonly referred to as the freehold estate.
What is a leasehold estate?
A leasehold estate is a term of years absolute granted by a freehold owner.
What is commonhold?
Commonhold is a type of freehold created for interdependent property owners, where a commonhold association maintains communal areas.
What are interests in land?
Interests in land are proprietary rights of limited use, giving the holder the right to do something on the land or restrict actions.
What are legal and equitable interests?
Legal interests include mortgages, easements, and rights of entry, while equitable interests include freehold covenants and estate contracts.
What is a mortgage?
A mortgage is a bundle of rights over property in exchange for a loan, allowing the lender to possess and sell the land upon default.
What is an easement?
An easement is a proprietary right to use someone else’s land for specific purposes, granted for a term equivalent to a legal estate.
What is a right of entry?
A right of entry is a legal interest allowing a landlord to re-enter leased premises upon tenant default.
What is a restrictive covenant?
A restrictive covenant is an equitable interest that imposes restrictions on land use, recognized by courts since the 1840s.
What is an estate contract?
An estate contract is a contractual right to a legal estate, enforceable in equity due to the uniqueness of land.
What is a trust of land?
A trust exists when one person holds property for the benefit of another, creating a split between legal and equitable title.
Why is the distinction between legal and equitable interests important?
It affects the remedies available for infringement and the enforcement of the interest against third parties.
Who owns all land in England and Wales?
The Crown owns all land in England and Wales.
What proprietary rights can a piece of land be subject to?
A piece of land may be subject to estates (freehold and leasehold) and interests (mortgage, easement, right of entry, restrictive covenant, interest in a trust of land, estate contract).
What are formalities in land transfer?
Formalities are the actions the owner of a freehold estate must take to transfer their land to a new owner.
Why is the degree of formality higher for land transfer compared to personal property?
The value and importance of land in society necessitate a higher degree of formality for its transfer.
What is the usual method of transferring a freehold estate?
The usual method is by sale, which consists of a three-stage process.
What are the three stages of transferring a freehold estate?
- Exchange of contracts (voluntary)
- Execution of a deed
- Registration of the deed
What are the requirements for a valid land contract?
- The contract must be in writing.
- It must contain all expressly agreed terms.
- It must be signed by both parties.
What is a deed in the context of land transfer?
A deed is known as a conveyance in unregistered land or a transfer in registered land.
What are the requirements of a valid deed?
- The deed must clearly indicate it is intended to be a deed.
- The deed must be validly executed.
- The deed must be delivered.
Is there a legal requirement for a buyer to sign the deed?
No, there is no legal requirement for a buyer to sign the deed, but it is common practice.
What triggers the requirement to register unregistered land?
The sale of unregistered land triggers the requirement to register the land at the Land Registry.
When does legal title transfer in registered land?
In registered land, legal title does not transfer until registration has taken place.
What is conveyancing?
Conveyancing is the legal process of transferring title to a freehold or leasehold estate.
What must a land contract comply with?
A land contract must comply with LP(MP)A 1989, s 2, which requires it to be in writing, signed by both parties, and contain all agreed terms.
Can a land contract be varied?
Yes, but any variation to a material term must also comply with LP(MP)A 1989, s 2.
What is the proprietary effect of a binding land contract?
It passes an equitable interest in the land to the buyer, known as an estate contract.
What is an estate contract?
An estate contract is a contractual right to a legal estate, whether freehold or leasehold, and is an equitable interest in the land.
What remedies are available for breach of a land contract?
- Damages
- Specific Performance
- Injunction
What is the history of land registration in England and Wales?
The current system is governed by the LRA 2002, which replaced the Land Registration Act 1925.
What are the advantages of the registered land system?
- Title plans evidencing property extent.
- State guarantee of ownership.
- Easy access to registered titles online.
What triggers compulsory registration of unregistered land?
The sale of unregistered land for the first time since 1 December 1990 triggers compulsory registration.
What are the triggering events under LRA 2002?
- Transfer of freehold estate by sale, gift, or court order.
- Grant of a lease for more than seven years.
What does ‘triggering event’ refer to in land registration?
A triggering event refers mainly to transfers on death, the grant of a lease to take effect in possession more than three months after the date of the grant, and a first legal mortgage of the freehold or leasehold with more than seven years to run.
What are the two systems to prove land ownership in England and Wales?
The two systems are registered land and unregistered land.
What does it mean if a piece of land is registered?
It means the details of ownership and rights are recorded at The Land Registry.
What must an owner of unregistered land do to prove ownership?
An owner must produce the historic title deeds for the property.
What is the purpose of land registration?
The aim is to ensure that buyers know precisely what they are buying and that interests recorded are enforceable against new owners.
What are the three principles of registered land?
The three principles are the Mirror Principle, Curtain Principle, and Insurance Principle.
What is the Mirror Principle?
The register should reflect all matters that benefit and burden the property, providing a clear account of ownership and rights.
What are overriding interests?
Overriding interests are interests that do not appear on the register but are still binding on the owner and any buyer.
What is the Curtain Principle?
The register records the legal estate ownership, while beneficial ownership is kept off the title, simplifying land conveyancing.
What is the Insurance Principle?
The accuracy of the register is guaranteed by the state, and errors will be corrected with compensation for any loss.
What is the statutory definition of ‘land’?
The statutory definition includes the surface, buildings, corporeal and incorporeal hereditaments.
What are corporeal and incorporeal hereditaments?
‘Corporeal hereditaments’ are physical things attached to the land, while ‘incorporeal hereditaments’ are proprietary rights with no physical substance.
What does the Latin maxim ‘Cuius est solum, eius est usque ad coelum et ad inferos’ mean?
It means he who owns the land owns everything up to the heavens above and the depths below.
What are the rights of a landowner in the airspace above their land?
An owner’s rights are restricted to the height necessary for ordinary use and enjoyment of the land.
What is the legal test for determining if an object is a fixture or chattel?
The legal test has two parts: the degree of annexation test and the purpose of annexation test.
What happens if a contract does not specifically exclude items from the sale?
The seller may not remove a fixture after contracting to sell the property.
What is the significance of the LPA 1925, s 62?
It states that a conveyance of land automatically includes all fixtures unless specifically excluded.
