Nature Of Land Flashcards
What are the rights in the land one can have?
Proprietary or personal
What are proprietary rights?
They can be enforced by an action in rem = use or possession of the land can be recovered
Note: The holder of the right does not have to settle for damages if they are deprived of their right
Can be enforced against a third party
What are personal rights?
Can only be enforced by a personal action for damages (if the right is breached)
Personal rights will only bind the original parties e.g. A licence
What are examples of rights that have proprietary status? Fixed list)
- Freehold estate
- leasehold estate
-Mortgage
-Easement - restrictive covenant
- estate contract
- a beneficial interest in a trust of land
How to determine whether a right is proprietary or personal?
1) is it on the fixed list of recognised proprietary rights in land?
2)the nature of the right - may need to satisfy certain substantive characteristics ( differ depending in the right)
3)the creation of a right -most proprietary rights are subject to strict requirements =formalities
- formalities; rules/procedures which must be observed in order to validly create or transfer a proprietary right.
4) if it is proprietary, Is it enforceable against a third party?
How do you find out if a piece of land is subject to a proprietary right?
- They are invisible eg, a mortgage or a lease-cannot be seen when looking at a piece of land
- will be made obvious by registration
A proprietary right - example: an easement
- For example, a right of way over their neighbour’s back yard
- Re ellenborough park; capability criteria which must be satisfied + it must be registered at the land registry
What is an estate?
- A proprietary right of possession is an estate in land
- 2 recognised = freehold and the leasehold (they determine the length of time the right of possession can be enjoyed
What is a freehold estate?
- Highest possible estate = fee simple absolute in possession = Law of property act 1925, s1(1)(a)
- freehold estate = right of possession lasts until the owner dies without heirs
-Absolute= the estate is not liable to end prematurely = not subject to any conditions
What is a leasehold estate?
- Freehold owner grants a lesser estate = certain duration
- Estate granted= term of years absoluteCLPA 1925, s1(1)(b) = leasehold estate OR a lease
Leaseholder/ tenant may grant a lease of a lesser durationistill retain the original lease) = sub-lease
Leasehold reversion = land automatically reverts to the land lord when the lease ends.
What is a common hold?
- A type of freehold = commonhold and leasehold reform act 2002
- Estate created out of a freehold registered estate
-Designed to meet needs of flat/apartment owners (properties where owners are interdependent on each other e.g. retirement homes)
What is un interest in land?
- A proprietary right of limited use = gives the interest holder the right to do something on the land OR restrict what can be done on the land
- may be referred to as incumbrances on an estate
What rights are interests?
- seen as a burden on the land e.g. if a piece of land is subject to a proprietary right of way (an easement), it may affect the value of the land
-Number of interests is limited by LPA 1925, s1 - if a right hasn’t been recognised by this statute, it will only be a personal in nature eg. a licence ( not ax interest in land = personal right against the grantor)
Legal and equitable interests?
- LPA1925,s1 (2) = lists interests capable of existing at law
- LPA 1925- s 1(3) = rights recognised by courts as having proprietary status
List of legal interests:
-Mortgages
- easements granted for a term equivalent to a freehold or leasehold estate
- rights of entry
List of equitable interests:
- freehold covenants
- estate contracts
- interests in a trust of land
- Easements granted for an uncertain term
What is a mortgage?
- Capable of being a legal interest = LPA 1925, s1(2)(c)
- ‘A bundle of rights’ granted over a property, in exchange for a loan of money
- rights include; the right to possess and sell the land in the event of default in the mortgage repayments
- note: The borrower grants the mortgage, not the lender
What is an easement?
- A proprietary right to use land which belongs to somebody else = a more limited than exclusive right to occupy or use the land
-It must be granted for a ferm equivalent to one of the legal estates, to be a legal easement LPA 1925, s1(2)(a) = (forever - like the freehold) OR (fer a certain period - like a lease)
Examples of an easement
- rights of way drainage, storage and parking on neighbouring land
-Right of entry regal interest in land LPA1925,S1(2)(e), and is EITHER;
A) a right for a land cord to re-enter leased premises land end the leasehold estate in the event of tenant default
B) a rentcharge owner’s right to hold the land if money owed is not paid
-Right of entry in a lease = forfeiture clause
What is a restrictive covenant?
- A covenant = a promise relating to the land
- arise when one person sells part of their land and wishes to ensure that the buyer does not do anything which could affect the amenity and value of the sellers retained land
- they are negative in nature = prevent a landowner from doing something on their land
-NOT a recognised legal interest in the land - falls under LPA 1925, 51(3) = equitable interest with proprietary status
- example: not to sell alcohol on the land, promise to only use the land for residential purposes
What is an estate contract?
- A contractual right to a legal estate (could be freehold or leasehold)
- equity orders a specific performance of a contract to create or transfer a legal estate = equitable interest arises
-An example= a contract to buy land, contract to grant a lease, option to purchase land, a right of pre-emption
What is an interest in a trust of land?
- Trust =when one person (the trustee) holds property for the benefit of another (the beneficiary)
- when a trust exists, there’s a split in the legal & equitable title (ownership)
-Piece of land may be put in trust, beneficiary has an equitable interest in the land
Trustee & beneficiaries can be the same OR different people
Trustee vs beneficiary
- Trustee holds the legal title
- beneficiary holds the equitable title
Express trust = interest in a trust of land
- where a piece of land is transferred to A to hold in trust for B
- A is the trustee = legal owner of the land
- B is the beneficiary = equitable interest in the land
Implied trust = interest in a trust of land
- A and B buy a house together, each contributing 50% of the purchase price
The land is transferred to A only = the legal owner of the land
Equity recognises B’s contribution and implies a trust
Making A and B both beneficiaries - B has an equitable interest in the land
Legal vs equitable interests
-Person who holds a legal interest, if their interest is infringed = they have a wide range of remedies available e.g. Damages
- whereas a person who holds an equitable interest, if their interest is infringed = they are NOT entitled damages as an automatic right
