The Nature of Land Flashcards
What are Proprietary Rights?
- Use or possession of the land can be recovered.
- The holder of the right does not have to settle for damages if they are deprived of their right
- It is capable of being enforced against a third party
What are Personal Rights
- Can only be enforced by a personal action for damages if the right is breached
- Use of the right cannot be recovered
- Personal rights will only bind the original parties to the right, there can be no recourse against a third party
How can you tell a right over land is proprietary or not
- There is a fixed list but that list isnt defined anywhere but rather a number of stautroy sections and case law
- Some rights will never be proprietary in nature and will have personal permission
What is an example of not being proprietary in nature but is a third party
A postal worker crossing your land to deliver post will never have
a proprietary right in your land, nor are they a trespasser. The postal worker
has a licence (a personal right) to cross your land for the purpose of
delivering the post.
Which rights have proprietary status? (on a fixed list)
- The freehold estate
- The leasehold estate
- An easement
- A mortgage
- A restrictive covenant
- An estate contract
- A beneficial interest in a trust of land
If it is on the fixed list as proprietary status, will the actual right itself be proprietary?
No
Just because the right is on the fixed list as a proprietary right doesn’t mean the actual right will have proprietary status
It sometimes depends on circumstances
Eg.
a right to park a car in a neighbour’s garage may be an
easement, which is a right that has proprietary status.
However, to park a car in a neighbour’s garage is not always going to be an easement.
Essentially, the same use could be either proprietary or personal, depending upon the circumstances in which it has arisen. So even if the use in question has been recognised as proprietary, whether it is, proprietary will depend upon other factors
For a right to have proprietary status what must it also satisfy?
The nature of the right
It must satisfy certain substantive characteristics
Other than the Nature of a right, what else is needed to determine a proprietary right
The Creation of a right
Substansive characteristics alone may be enough, but sometimes need to look further at the formalities to determine if the right is proprietary
What is the order when determining the status of a right in land
Fixed list -
Is it on the list of recognised proprietary rights in the land?
Nature of a right -
Does it satisfy any substantive characteristics for the particular proprietary right?
Creation of a right -
Has it been created in accordance with the formalities for the particular right?
Protection of a right -
If a right is proprietary, you need to ask if it is enforceable against a third party
A proprietary right of possession is called?
An estate in land
All the physical land in this country is owned by whom?
The crown
If we don’t own the physical land, what do we own?
The right to possess the land
What are the 2 recognised legal estates?
The freehold and the Leasehold
What is the highest possible estate in the land?
Fee simple absolute in possession (s.1(1)(a) LPA)
Also known as the freehold estate
It has a right of possession which lasts until the owner for the time being dies without heirs, meaning without any blood relatives and if it isnt disposed of by will
What do the words in fee simple absolute in possession mean?
- Fee - it is capable of being inherited
- Simple - can be inherited by any heir (including distant relatives)
- Absolute - the estate is not liable to end prematurely, it is not determinable or subject to a condition
- In possession - the fee simple owner has a current right to use and enjoy the property - can include recieving rent
What is it called if the current owner dies without next of kin and without a will?
Called bona vacantia and the estate reverts to the crown
This is rare
What is the leasehold estate?
Where a freehold owner grants a lesser estate, which is of a certain duration, the estate granted is a term of years absolute
More commonly known as the leasehold or a lease
What is a ‘sub-lease’
The leaseholder (the tenant) may grant a lease of a lesser duration out of their own leasehold, while still retaining the original lease
What is the freehold reversion
The residue of the estate after the granting of a lease is known as the freehold reversion
What is the leasehold reversion
If the grantor holds a leasehold estate, the residue is known as the leasehold reversion
What is the hierarchy of rights of possession
The same piece of land may simultaneously be subject to a freehold, a lease and a sub
lease etc with the holder of each right owning not the land itself but rather the right to possession of the land subject to the lesser rights they have granted for their particular ‘slice of time’
What are Commonholds
- Commonhold is a type of freehold
- Introduced by the Commonhold and Leasehold Reform Act 2002
- It is created out of a freehold registered estate
What are Commonholds for?
Designed to meet the needs of owners of flats or apartments, and other properties where the owners are interdependent on each other, for example, retirement homes.
Why were Commonholds introduced? and what are some advantages?
- An alternative to a long lease, which is a declining asset
- There is no landlord
- But there is a freehold owner and that is a company called Commonhold Association
- Commonhold association is responsible for maintaining the communal areas of the building
