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Land Law 2016/17

Lecture Topic 1
Estates and Interests in Land

Property law
Land law is an important part of the law of property
Property law is concerned with the relationship between persons in regard to
Things are objects of property; they may be tangible or intangible
Tangibles can be physically possessed (include goods and land)
Intangibles (choses in action) cannot be physically possessed and rights in
them can be enforced only by legal action (include copyrights, company

Characteristics of property rights

Alienability; Heritability; Irrevocability; Enforceability against third parties
Claimed and vindicated specifically (usually)
These are merely characteristics (not all need to be present)
No bright line between property and personal rights
eg Verrall v Great Yarmouth BC [1981] QB 202 (CA)
Even a contract can have a limited effect on third parties

Personal versus property rights

Personal rights
Rights given by current land owner permitting someone to do something
on the land
See eg Thomas v Sorrell (1672) Vaughan 330: a licence is permission to
use land belonging to another that, without such permission, would
constitute trespass
Enforceable by and against parties to the agreement or contract

Property (proprietary) rights

These count as land, s 205(1)(ix) Law of Property Law 1925
The right holder may enforce her right against the land itself (the res)
irrespective of who owns it
Property rights are capable of binding third parties
So it is important to be able to identify which rights are proprietary,
because of their enduring character and force

Property rights
They include, eg:
Mortgages, easements, covenants, profits prendre
Freehold and leasehold are also proprietary
Freehold enforced against the Crown
Leasehold enforced against superior estate
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Division of property rights

Different property rights can exist in respect of the same object of property (analogy
of bundle of sticks). In land, the division can be:
By use of land
Easements and profits prendre
Restrictive covenants
Between use value and economic value
Mortgages (charges)
By simultaneous division of rights amongst several persons
Split of legal and equitable ownership (including the trust)
Adverse possession

Defining land
Land is so rich and so complex, and so helpfully permanent (usually), that owning it
is not like owning a piano (Elizabeth Cooke, Land Law (2nd edn, OUP 2012) 1)

Statutory definitions of land

s 205(1)(ix) Law of Property Act 1925

Corporeal hereditaments
Physical, tangible characteristics of land
Not just the soil or rock, but also physical things attached to or in the ground (but not
flowing water, see Thames Heliports plc v LB Tower Hamlets (1997) 74 P & CR 164,
Incorporeal hereditaments
Intangible rights held over land
eg easements, profits prendre

A key theme in land law = tendency to blend physical and abstract perceptions of
ie property as fact and property as right
s 205(1)(ix) LPA 1925
Land includes an easement, right, privilege, or benefit in, over or derived from land
Note effect of s 62(1) LPA 1925

The third dimension of land

(The first two dimensions being co-ordinates at the land surface, see Gray & Gray,
Elements of Land Law (OUP 2009))
Land must have some three-dimensional significance
Note s 205(1)(ix) LPA 1925
Land may be held apart from the surface
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Land may be subject to horizontal division stratified vested in various owners


Cuius est solum, eius est usque ad coelum et ad inferos

Latin maxim
He who owns the land owns everything reaching up to the very heavens and
down to the depths of the earth
Note, now subject to many qualifications
so sweeping, unscientific and unpractical a doctrine is unlikely to appeal to the
common law mind (Commissioner for Railways et al v Valuer-General [1974] AC
328, 351H-352C)
Applied case-by-case

What does it mean in practice?

Possible for landowner to convey separate estates in horizontal strata of land
eg, one person could own freehold estate in surface layer, while another person
owns freehold in sub-soil or layer of minerals
Note, ownership of land subject to statutory duties of eg utility companies
Telecommunications Act 1984, Sch 2 (The Telecommunications Code)
A wayleave is an agreement (ie a licence or permission) which does not amount to a
property right, in contrast with an easement or a lease

Subterranean zones
Land owner is entitled to at least some quantum of soil or void underlying the
two-dimensional co-ordinates at the surface
Transfer of estate in land normally conveys, eg
Space contained in immediately subjacent cellar (Grigsby v Melville [1974] 1 WLR
80, 84F-G)
Most subjacent minerals but note that all rights to petroleum resources (oil, coal,
gas) vest in the Crown, ss 1(a) and 2(1) Petroleum Act 1998

Subterranean trespass
Those entitled to possession of the solum (ie soil) may sue in trespass in the
event of subterranean invasions of their land
Leading case: Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35
Note, the Bocardo ruling no longer applies to certain types of drilling see ss 43-
44 Infrastructure Act 2015

Natural rights to support for land

Landowners entitlement to integrity of subjacent soil is protected by certain
natural rights
Such natural rights exist automatically
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Every landowner has a right to enjoy his own land in its natural state and is
therefore entitled to have his land physically supported by the lateral thrust
provided by his neighbours land (Gray & Gray, 19)
As distinct from an easement of support (although both may arise)
Dalton v Angus & Co (1881) 6 App Cas 740
A building situated on land may acquire an easement of support from soil
of adjoining land after prescriptive period of 20 years

Neighbours duty is non-delegable

Violation of the right of support where excavation of adjacent / subjacent land
causes actual disturbance or damage to surface of Cs land
Remedies damages and possibly mandatory injunction (Redland Bricks Ltd v
Morris [1969] 2 All ER 576, 579H-580F)

Superjacent space airspace

Estate owner has certain rights over limited portion of airspace
Lower stratum
Immediately above land
Effective control is necessary for landowners reasonable enjoyment of land at
surface (Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479)
How far up? Courts usually unwilling to quantify, but unlikely to be >150-200 metres
above roof level
Also see Rules of the Air Regulations 2007, Sch 1 r 5(3)(b)
Any lateral invasion of lower stratum actionable in trespass
Remedies declaratory relief, or damages and/or injunctive relief

Upper stratum
Unpropertised commons (K. Gray, Property in Thin Air [1991] CJL 252, 256)
Owned by no state or person, available for use by all
When does lower stratum become upper stratum?
Bernstein of Leigh v Skyviews & General Ltd [1978] such height as is necessary
for the ordinary use and enjoyment of his land and the structures upon it
s 76(1) Civil Aviation Act 1982
No action in trespass or nuisance in respect of flight of aircraft over land at a height
above the ground, which, having regard to wind, weather and all the circumstances
of the case is reasonable provided that the aircraft complies with relevant regulatory
Immunity provided by the Act applies only to innocent passage see Rules of Air
Regulations 2007 Sch 1 r 6

Aerial photography and surveillance

More difficult to ascertain whether trespass or nuisance
Key case: Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479
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Rejected claims of trespass and nuisance arising from overflight to purpose of

commercial aerial photography
Had not interfered with Cs use of land
But different consequences might have attached to harassment of constant
surveillance of [the Cs] house from the air, accompanied by the photographing of
his every activity

Buildings and other constructions: accession to realty?

superficies solo cedit (a building becomes part of the ground)
eg, a building constructed on foundations placed in the soil = part of the land
(Mitchell v Mosley [1914] 1 Ch 438)
Once incorporated within realty, such buildings/constructions are presumed to
pass on any subsequent transfer of estate (s 62(1) LPA 1925)

Accession to realty: criteria

Key case: Elitestone Ltd v Morris and Another [1997] 1 W.L.R. 687

Has building/construction become annexed?

Range of factors, eg:
Physical bonding between structure and subjacent land
(But note that even dry stone wall can become part of the land Holland v Hodgson
(1872) LR 7 CP 328, 335)
General character of building
Objectively demonstrable intention or purpose underlying its construction
(Subjective intention of builders/dwellers irrelevant)

Fixtures or mere chattels?

quicquid plantatur solo, solo cedit (whatever is attached to the ground becomes a
part of it)
Fixtures material objects which, when physically attached to land, have
become annexed to realty
Chattels physical objects which never lose independent character as
Test Holland v Hodgson (1872) Blackburn J:
1) Degree or mode of annexation
2) General purpose of annexation
Title to fixture vests automatically and exclusively in owner of realty (whether
freeholder or leaseholder)

Land also includes

Trees, shrubs, hedges, plants and flowers growing on it (Monsanto v Tilly [2000]
Env LR 313)
But horizontal division is possible, so feasible to own and convey freehold/leasehold
estate in a tree separately from estate ownership in subjacent soil
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But wild birds and animals not subjects of absolutely ownership

Position is less straightforward regarding water
Water incapable of being owned (Alfred F Beckett Ltd v Lyons [1967] Ch 449)
So landowner has no property rights in water flowing across her land (eg in river) or
in water percolating through her land
Although inland water (eg ponds, lakes) generally considered to be a species of land

Estates and interests in land

Property rights at common law
Property rights in equity

Concept of title
Title is ambiguous word in land law
It can mean either:
evidence of a persons right to property, or
the right itself
One of the themes of land law is the tension between the two and the attempts to
bring them closer together, or even to unite them

Unregistered and registered titles an overview

In England and Wales, there are two types of titles to land: unregistered and
Unregistered titles: this older system was essentially based (until 1926) purely on
common law and equity
Those basic principles were significantly modified by the LPA 1925
Registered titles: the registered system seeks to record the state of titles to land
on a register maintained by a public body (the Land Registry)
First introduced in mid-19th century, but most important statute was LRA 1925 (Land
Registration Act 1925)

The title LRA 1925 sought to record the title as it would be at common law and in
equity as modified by LPA 1925
so that the evidence of title on the register should so far as possible reflect the
title itself
Registered system slow to spread, but statutes in last 30 years (especially LRA
2002, which replaced LRA 1925) have striven to have more titles registered and
more rights over land entered on the register
Now 80% of titles are registered (60% of land area), so registered titles are the
main subject of our study
But system of registration of titles is based on the previously existing structure of
land law (i.e. on the unregistered system as modified by LPA 1925)

So to understand land law, we shall initially study:

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Property rights at common law and in equity, and how LPA 1925 modified those
The formalities for the creation and disposal of property rights and the extent to
which such formalities can be dispensed with (including proprietary estoppel)
(the foregoing apply to both unregistered and registered titles though there are
additional formality requirements for registered titles )
An outline of the unregistered system, its defects, and the moves to registered
titles; and
The system of registered titles, and the extent to which such system is
developing substantive differences

Property rights at common law

How land is held? Tenure
Since Norman Conquest, all land is owned by the Crown
In years after 1066, the King apportioned land amongst his immediate Lords
(tenants in chief) in return for services
How the Lord held the land (his tenure) depended on the services that the Lord
had to perform (incidents of tenure)
Tenants in chief could apportion to mesne Lords, and so on (subinfeudation)
On death of a tenant without heirs, his land returned to his immediate Lord
(known as escheat)

Subinfeudation was prohibited by statute Quia Emptores 1290 (still in force)

Over the centuries, the statute gradually reduced the pyramid of mesne Lords, so
by early 20th century all tenures were in fact held directly from the Crown
Surviving incidents of tenure had been abolished in 1660
In 1926, all these feudal tenures were reduced to one (socage tenure)
In 1926, escheat on death of tenant intestate without heirs was abolished
(Administration of Estates Act 1926, s 45(1)(d)
(but, after 1925, the property of a person who dies intestate without leaving next-
of-kin as specified in AEA 1925, s 46, passes to the Crown similar in effect to

From 13th century, however, leases of land were being created outside the feudal
Such early leases were merely contracts, but later they were treated as creating
property rights, and so gave rise to a non-feudal type of tenure, whereby the
tenant (T) held the land from the lord (the landlord (L)) according to the terms of
the lease
Technically, rent payable under a lease is called rent service, which reveals the
leases historical origins
For practical purposes, leasehold is in modern times the only significant tenure,
as the lease sets out the rights and obligations as between L and T (ie how T
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What is held? Estates in land

The common law recognised two sorts:
Freehold estates (estates of uncertain maximum duration)
Fee simple; fee tail; life estate
The last was not an estate of inheritance; so if A disposed of his life
estate to B, B could acquire an estate to last only until As death
Leasehold estates (estates of certain maximum duration)
Lace v Chantler [1944] KB 368
When leases came to be treated as property rights, the tenant was
recognised as holding an estate in the land (on a non-feudal tenure). This
late development means that leases remain personalty not realty
(important if testator leaves these to different persons)

At common law, estates could be:

in possession
in remainder
in reversion

eg, A has legal estate in fee simple

(i) A grants life estate to B
(ii) Instead, A grants life estate to B remainder to C

Estate could be vested or contingent

Vested means the estate is a subsisting right in property (ie the estate is owned
eg, to A for life remainder to B
Contingent means there is no estate unless and until a future event occurs
eg, to A for life remainder to B if he attains 25

Types of fee simple estates

At common law, a fee simple estate could be either:
Absolute (ie perpetual), or
Determinable (eg so long as, until, whilst)
Conditional (eg provided that, on condition that, but if)
Note, determinable fee ends automatically when event occurs, whereas conditional
fee ends only when and if grantor (or other person entitled) enters the land and takes

Property rights in equity

The emergence of equity
Common laws growing rigidity
Petitions to the king
Court of Chancery develops
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Earl of Oxfords Case (1615)

Judicature Acts 1873-75
The development of the trust
The medieval use
Reasons for the use
Use protected by the Lord Chancellor
Extension of rights accorded to the cestui que use
The emergence of an equitable property right
Split in ownership between common law and equity
Attack on the use by Statute of Uses 1535
Survival of the use as the trust

The modern trust

Settlor (creates trust)
Trustee or trustees (hold legal title)
Beneficiary or beneficiaries (enjoy benefit of the property)
eg, S transfers estate in land to T to hold in trust for B

How trusts can arise

1) Express trust
Created by express intention of settlor

2) Implied trust
Based on presumed intention of settlor (most commonly takes form of a resulting
Resulting trust
Beneficial interest goes back to the settlor (or estate)
eg, S transfers estate in land to T to hold in trust for B if he attains 25
Constructive trust
Essentially imposed to prevent fraud or unconscionable conduct

3) Statutory trust
Imposed by statute (examples as we go along, but main focus shall be on express
and implied trusts)

Property rights recognised exclusively in equity

Trust (considered in detail later in the course)
Rights arising through proprietary estoppel (later in first semester)
Mortgagors equity of redemption (in detail in second semester for 30-credit
students only)
Restrictive covenants (second semester 30-credit students only)
(These rights are not recognised at common law)

Equitable property rights equivalent to rights recognised at common law can arise:
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1) If the formalities for the creation of a legal right have not been performed (but
any formalities for the creation of the equitable right have been)
Thus eg, legal easement has its counterpart in equitable easement; legal
lease has its counterpart in equitable lease
The doctrine of Walsh v Lonsdale (1882) 21 Ch D 9
For an equitable counterpart to arise, the right must contain the essential elements of
the legal right,
eg an easement must exist for the benefit of neighbouring land;
so a purported legal easement that does not benefit
neighbouring land cannot be an equitable easement either

2) If all the person creating the rights has is an equitable interest

Impact of LPA 1925 on number of legal estates and interests

Problems with the multiplicity of legal estates before 1926
Practical difficulty in disposing of a useful estate, so risk that land rendered
economically sterile
Complexity of conveyancing and risk for purchaser
Statutory reduction of estates capable of being created or subsisting as legal
estates: LPA 1925, s 1(1)
fee simple absolute in possession (FSAIP)
term of years absolute (TYA)

Statutory reduction in the number of legal interests

At common law legal interests bind the world
The aim of the LPA 1925 of aiding purchasers was to reduce the number of
interests over land that can exist as legal interests
LPA 1925, s 1(2) lists 5 categories of legal interests; the most important are:
(a) easements and profits for period equivalent to a FSAIP or a TYA
(c) charge by way of legal mortgage
(e) right of entry in a legal TYA
Other interests take effect as equitable interests: LPA 1925, s 1(3)

Residual category of equitable interests

Those estates and interests that since 1926 cannot exist at law, take effect as
equitable interests: LPA 1925, s 1(3)
Equitable interests can arise where they would have been capable of existing as
legal estates or interests, but:
i) are not for a term equivalent to a FSAIP or a TYA (eg, easement for life),
ii) lack the formalities needed to create a legal interest but do meet any
needed to create an equitable interest (eg, valid contract to grant an
easement or to grant a lease: Walsh v Lonsdale (1882) 21 Ch D 9)
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Equitable interests can also arise where the rights are recognised as property
rights only in equity
eg beneficial interest under a trust, rights arising through proprietary estoppel,
restrictive covenant

Formalities and the creation of property rights

s 52 LPA 1925 Conveyances to be by deed
s 52(1) All conveyances of land or of any interest therein are void for the purpose
of conveying or creating a legal estate unless made by deed.
Note definition of conveyance, s 205(1)(ii) LPA 1925
Conveyance includes a mortgage, charge, lease, assent, vesting declaration,
vesting instrument, disclaimer, release and every other assurance of property or
of an interest therein by any instrument, except a will; convey has a
corresponding meaning; and disposition includes a conveyance

s 1 Law of Property (Miscellaneous Provisions) Act 1989

Deed must be:
But note exceptions to requirement of deed
In particular, s 52(2)(d) LPA 1925
leases granted for a term of not more than three years. Such an estate subsists at
law without needing to comply with requirements of form or registration.

Importance of distinctions in land law

Property rights versus personal rights
Legal rights versus equitable rights

Remedial outcome
Personal rights in personam
Only asserted against specific person
Property rights in rem (in the land itself)
Enforced against purchaser of estate that is subject to those rights
Property rights can themselves be categorised into legal or equitable

Effect on third parties (binding impact)

Legal and equitable property rights have different binding impact
Rules of thumb (we shall go through the detail in future lectures)
Legal rights are automatically binding upon the world (a reflection of the often more
formal character of legal rights)
For equitable rights to bind, they require assistance of various mechanisms of
registration, or conscience-based doctrine of notice