Land 1 - Lecture (2017)

Adam Baker Law 2270 and 3270
Land Law 2017-2018
Land Law: Topic One
General principles and concepts
1
1. The Concept of Property
1.1 Meaning of ‘property’
The term ‘property’ can be used in three senses.

1.2 Real property and personal property
The terms ‘real property’

and ‘realty’ describe both
land (as a physical entity)
and proprietary rights in
it, with the exception of
leasehold estates.
1.2 Real property and personal property
l
Property
Real Personal
(land + rights in (chattels (and rights in
land (except them); choses in action;
leasehold estates) and leasehold estates)
2. Tangible Sense of Land
2.1 Introduction
In this section we are concerned with ‘land’ in the

sense of a physical asset.
2. Tangible Sense of ‘Land’
2.2 The ground below the surface
Edwards v Lee’s Administrator

(1936)
Edwards’ land included the entrance to a cave. He

allowed guests to visit the cave for a fee.
A third of the cave lied under the surface of Lee’s land.

Lee successfully sued Edwards in trespass to land.
In Bocardo SA v Star Energy (2011), it was held that an

owner’s entitlement extends down to the point at
which physical features (such as pressure and
temperature) render the concept of ownership absurd.
There are nevertheless certain exceptions to the

principle of subterranean ownership.
2.3 The surface
Ownership of the surface of ‘land’ extends to things

such as trees, hedges, plants and flowers, whether
cultivated or wild.
More difficulties can be caused

by the status of constructions and
other items brought onto the
Land.
2.3 The surface
Constructions include things like walls, houses and

garages. Very often these will be deemed to have
become ‘part and parcel of’ the relevant land.
2.3 The surface
The same issue also arises with objects other than

constructions that are brought onto land.
2.3 The surface
The burden of proof in both instances turns on whether

the item is attached to the land or merely rests on its
own weight.
2.3 The surface
The key issue in either event is the objective purpose

for which the item is present; that is, whether it is there
to form a lasting improvement to the land or merely
present so that it can be enjoyed of itself.
2.3 The surface
Botham v TSB Bank Plc (1996)
Fixtures: bathroom fittings (e.g.

towel rails, taps); and kitchen
units (e.g. fitted sink).
Chattels: fitted carpets, curtains and blinds; kitchen

white goods; light fittings.
2.3 The surface
D’Eyncourt v Gregory (1866)
Statues, figures and vases,

though not secured to the
land in any way, were held to
be fixtures because they were
regarded as part of the
architectural design of the
house.
2.3 The surface
Elitestone v Morris (1997)
A bungalow rested on concrete

pillars which were attached to
the ground. The bungalow could only be removed by
being demolished.
Held to be part and parcel of the land.

2.4 Airspace
‘Land’ extends to such portion of the above airspace as

is necessary for the reasonable enjoyment of it at
ground level. Any unauthorised entry into this airspace
is hence actionable as a trespass to land.
2.4 Airspace
Bernstein v Skyways & General Ltd (1978)
Ds flew over the P’s land for

the purpose of taking an
aerial photograph of their
property.
P’s claim in trespass to land

failed.
3. Proprietary Rights in Land
Four questions for sections 3.1–3.2
1) How do proprietary and personal rights differ?
2) How do we decide whether an owner of land has

created a proprietary right?
3) How can novel types of property right come about?
4) What role do the courts play with recognised

property rights?
3.1 Proprietary and personal rights
Owners of land can confer both ‘property rights’ (also

called ‘proprietary rights’ and ‘interests in land’) over
their land on other persons.
Property rights over land very significant, as they

capable of enforcement against third parties.
Example
B is the owner of a field.

B confers a proprietary right
on A to walk across that field.
If B sells the land to C, A can assert their right to cross

the field against C.
Return to our previous example. Assume that D, a

neighbour, causes an obstruction on the field that
substantially interferes with A’s right to walk across it.
A may claim damages (/an injunction) against D.

• By operation of law: this is when a property right

arises automatically, on certain conditions being met.
If they are, it does not matter whether the owner
intended the right to arise or not.
• By intention: this heading covers various situations

when the landowner objectively intended the right
to arise.
Personal rights are

enforceable only
against the other
party/parties to them.
Example
A owns a cinema. Z purchases a ticket to see a film at

the cinema. This is merely a contractual right (a
‘contractual licence’).
If, before Z sees the film, A has

sold the cinema to B, Z has no
right against B to see the film.
Hill v Tupper (1863)
A company owned a canal. It gave Hill the ‘exclusive

right’ to put pleasure boats for hire on the canal.
The right was

considered to be a
contractual one only.
Tupper put rival pleasure boats on the canal. Hill tried

unsuccessfully to sue Tupper. The contractual right was
held to be good only against the canal owner.
3.2 Whether a property right has been created
Only certain types of right can be proprietary. Case law

(sometimes combined with statute) sets down the
requirements for each type of proprietary right.
When deciding whether a property right has arisen by

operation of law, one asks whether or not the
conditions for this to happen have been met.
In all other situations, one takes the

document/agreement alleged to have created a
property right, and asks what right was objectively
intended.
Example: A owns
some undeveloped
land. A agrees in
writing that B may
exercise her dogs on
it.
The agreement states that the right is to be

proprietary.
Land law recognises no proprietary right of dog

exercising. The right is therefore only personal.
If matters were otherwise, B could

enforce her right against later
owners of the land. This could
otherwise impede any productive
use of it.
The list of rights that can be proprietary has not stood

still over time. Before 1926, new ones arose when the
courts decided to enforce them against third parties
Various cases have concerned new alleged property

rights, whether alleged to arise by either intention or
operation of law.
The acceptance or rejection of these claims shows the

role of policy considerations in land law.
The ‘deserted wife’s equity’ was considered by the HL

in National Provincial Bank Ltd v Ainsworth (1965).
When a husband who owned the matrimonial home

deserted their wife, the CA held that the wife gained a
proprietary right to remain in that home. It would only
end on divorce/a court order.
The ‘difficulties are to my mind so overwhelming and

show so clearly that this right of the wife has no place
in the law of property’: at 1250, per Lord Wilberforce.
‘[A proprietary right] must be definable, identifiable by

third parties, capable in its nature of assumption by
third parties, and have some degree of permanence or
stability. The wife's right has none of these qualities, it
is characterised by the reverse of them.’
At 1247, per Lord Wilberforce

An ‘easement’ is a proprietary right that one landowner

can enjoy over land of another nearby landowner (e.g.
a right of way).
Any valid easement must be

connected with the ‘normal’
enjoyment of land:
Re Ellenborough Park (1956).
Can a recreational right be an easement? At one time,

it was argued that it could never be.
In Re Ellenborough Park (1956), it was held that a right

to enjoy a garden was connected to the ‘normal
enjoyment’ of land.
… but it was said that a ‘mere right of recreation’ would

not be.
In Regency Villas v Diamond Resorts (2017), this caveat

was not followed by the Court of Appeal.
A right to use recreational facilities could be an

easement.
A leasehold estate is a type of proprietary right. It

involves hired control of the land for a ‘term certain’;
that is, a period that is certain from the outset.
Many properties are hired out in this way.

Should a residential tenancy come with an implied

warranty of habitability?
The courts have held not. They have also resisted any
arguments designed to get around this rule.
As we have just seen, a leasehold estate involves hired

control of the land for a ‘term certain’; that is, a period
that is certain from the outset.
Some have argued that the ‘term certain’ requirement

is a trap for the unwary, and should be removed.
This argument was put to the HL in

Prudential Assurance v LRB (1992),
and again to the SC in Mexfield v
Berrisford (2015).
Despite expressing dissatisfaction with the ‘term

certain’ requirement, on both occasions the court
decided to retain it.
When a cohabiting couple (A and B) live in a home, and

only A has their name on the title deeds, the starting
point is that A is the sole owner.
There are, however, rules by which

B can show that they have a ‘share’
in the home…
The rules in the 1960s and earlier

gave B a much better chance if
they had made payments
towards the house.
During the 1970s, however, Lord Denning M.R. pushed

for a rule, by which B would get a share ‘whenever
justice and good conscience requires it’ (Hussey v
Palmer (1972)).
The CA rejected this idea in Burns v Burns (1983).
But ever since then, there has been pressure on the

courts to relax the rules (e.g. Rosset (1991); Stack
(2007); Kernott (2012))
4. Freehold Estates in Land
Five questions for sections 4.1–4.3
1) What is a legal fee simple?
2) Where (in theory) do such estates originate?
3) Why must there be one in any (non-demesne) plot

of land?
4) How does one prove ownership of such an estate?
5) How does one transfer such an estate?

4.1.1 Origins of the concept
English land law does not recognise that any person

can be the ‘owner’ of land in the
sense that Civil Law systems do.
This is because it is underpinned by
the theory that the Crown ‘owns’
all land.
4.1.1 Origins of the concept
‘The land itself is one thing and the estate in the

land is another thing, for an estate in the land is a
time in the land or land for a time.’
Walsingham's Case (1573)
4.1.2 Types of freehold estate
Freehold estates are ones of indeterminate duration.

The event that will bring them to an end is known but
not predictable, in the sense that one cannot say with
certainty at the outset of their existence when that
event will occur.
A fee simple is the amplest estate that one can have in

land. A fee simple estate lasts for so long as the present
owner of it has heirs.
A fee tail estate is one that

passes down to the lineal
descendants of the ‘grantee’
(the person first granted the
right), most usually through
succession by eldest male
children.
A life estate exists for the lifetime of the original

grantee.
Freehold estates are further classified according to

whether they are (i) absolute, conditional or
determinable; and (ii) in possession, in reversion or in
remainder. We are only really interested in estates that
are ‘absolute’ and ‘in possession’.
Example
Imagine that B has

a life estate in a beach,
and that C gets the land afterwards.
C has a fee simple in remainder/reversion in the beach.
When B’s life estate ends, C’s fee simple becomes one
‘in possession’.
i.e. during B’s lifetime
‘B’ ‘C’
Life estate Fee simple absolute in remainder
And after B’s death:

‘C’
Fee simple absolute in possession
4.2 The source of legal freeholds
We have seen that, after the Conquest in 1066, the

Crown became the ‘owner’ of all land. It could then
grant estates in it. These grants commonly came to take
the form of a fee simple absolute in possession.
When the Crown had granted a fee simple estate in

land, its holder could also create lesser estates out of it.
One way to think of this is to imagine the fee simple
being split into smaller fragments of time.
A fee simple holder could divide their estate up into a

life estate followed by a fee simple in remainder:
‘A’
Fee simple absolute in possession
Is divided into:

‘B’ ‘C’
Life estate Fee simple absolute in remainder
Legal freehold estates, whether created by the Crown

or an estate holder, could also in principle be sold and
gifted from person to person.
If all of the legal estates in a given plot of land came to

an end, or if no such estates had ever been conferred
over it by the Crown, that land could be enjoyed by the
Crown. (Such land has come to be known as ‘demesne’
land.)
The theory through into the 1800s, therefore, was that

the legal fee simple absolute in possession in any plot
of land […] had been transferred from person to
person, and could trace its origin back to a Crown grant.
4.2 The LPA 1925
The Law of Property Act 1925

(which came into force on 1
January 1926) made some
crucial changes to this
system.
4.3 ‘Registered’ and ‘unregistered’ land
The legal fee simple estate in any given plot of land can
also be described as ‘registered’ or ‘unregistered’.
4.3 ‘Registered’ and ‘unregistered’ land
Registered conveyancing is seen to be less complicated,

less time-consuming and therefore cheaper than
unregistered conveyancing.
Five questions for section 4.4
1) What is ‘absolute ownership’?
2) What happens when there is a trust?
3) In what situations do trusts arise?
4) Why would one want to be a trustee?
5) What should a prospective buyer do about the risk

that the land they are buying is held on trust?
4.4.1 Introduction to trusts
In Section 4.3, we noted the idea of a ‘legal’ freehold

estate. By this, we refer to a freehold estate which in
theory originated in a Crown grant. Today this can only
be a fee simple absolute in possession.
The holder of a legal fee simple absolute in possession

may be called the ‘legal owner’. The starting point is
that the owner of this estate is entitled to use the
powers that come with it for their own benefit.
However, this default position is overridden if a ‘trust’

comes into existence. When occurs, the legal owner(s)
are called ‘trustees’.
They must then use their rights as legal owners for the
benefit of certain other person(s) (called the
‘beneficiary’/’beneficiaries), of whom they may be
one.
This interest held by the beneficiaries is a proprietary

right. It is variously called the ‘equitable estate’, the
‘equitable interest’ or the ‘beneficial interest’.
The precise type of equitable estate taken by the

beneficiary(ies) will turn on the circumstances in which
the trust arose.
Equity ‘Y’ (fsp)
Law ‘X’ (fsp)

It is important to note also that there is no prohibition

on a person being both a trustee (a legal estate
holder) and a beneficiary. Such trusts are in fact very
common.
4.4.2 When trusts arise
When a legal fee simple is not held on trust, the

holder of it is called the ‘absolute owner’. There are
however various ways by which an unencumbered
legal fee simple could become subject to a trust.
The situations in which this can happen are, in

practice, spoken of as the ways in which a trust can be
‘created’, or can ‘arise’.
4.4.2 When trusts arise
• when the legal owner(s) validly declare(s) an

‘express trust’;
• when an absolute owner transfers their legal fee

simple to another person(s), and validly declares
there to be an express trust at the same time; and
• by operation of law (such trusts are called

‘constructive’ and ‘resulting’ trusts).
4.4.3 Why be a trustee?
Sometimes, trustees are not trustees by choice. This

can be the case with trusts arising by operation of
law. But often there are reasons for wanting to be a
trustee.
4.4.4 Purchasers and land held on trust
The precise details of when equitable estates bind

purchasers of the legal fee simple are considered in
detail topic 7.
One point is, however, worth stressing even at this

stage…
4.4.5 Origins of the trust
The concept of a ‘trust’ has its origins in the 13th and

14th centuries.
4.4.5 Origins of trusts
The rather strange situation,

by which the common law
courts recognised only legal
estates, and the Court of
Chancery enforced equitable
ones, was ended by the
Supreme Court of Judicature
Act 1873.
5. Leasehold Estates
5.1 Introduction
A ‘leasehold estate’ (sometimes called a ‘lease’ or a

‘term of years absolute’) differs from a freehold estate
in that it is for a determinate duration.
5.1 Introduction
The Crown can grant a leasehold estate in demesne

land. Much more importantly, they can be created (i)
by holders of legal and equitable freehold estates; and
(ii) by those with leasehold estates.
5.1 Introduction
A person granted a leasehold estate is often called a

‘tenant’, and the person who conferred the estate is
often called the ‘landlord’.
5.2 Leases can be legal or equitable
A leasehold estate can be ‘legal’

or ‘equitable’: s 1 LPA 1925.
It will be legal if it is (i) created

by a legal estate holder; and (ii)
it meets the formality
requirements to be legal (see
topic 4).
The idea of ‘equitable leases’

had its origins in the Court of
Chancery. This court (unlike the
common law courts) recognised
and enforced equitable leases
that arose in the two situations
just described.
There remain some differences between legal and

equitable leasehold estates. Most importantly, the
rules on when legal leases bind third parties are
different to the rules for when equitable leases bind
third parties.
5.3 Legal leases can be held on trust
A legal leasehold estate can be held on trust, just like a

legal freehold estate. (This likewise owed to the
position taken by the Court of Chancery.)
5.3 Legal leases can be held on trust
In Section 4.3, above, we saw how a legal fee simple

can be ‘unregistered’ or ‘registered’. The same is also
true with legal leasehold estates.
6. Other Proprietary Rights
6.1 The types of right
In addition to estates in land, there are also various

other types of proprietary right.
These rights can in principle only be created by estate

holders (whether freehold or leasehold, and whether
or legal or equitable).
6.1 The types of right
At a very basic level these rights can be classified as

follows:
a. rights to derive a limited advantage from or over

another’s land;
b. rights concerning the sale of estates in land; and
c. security rights over land.
6.2 Legal and equitable rights
It is important to distinguish between

‘legal’ and ‘equitable’ rights when
considering these other
proprietary rights.
Those rights that can be ‘legal’ or equitable are listed

in s 1(1)-(2) of the Law of Property Act 1925. Those
rights that are not listed there can only be equitable: s
1(3).
6.2 Legal and equitable rights
Whether a right is legal or equitable

usually makes no difference at all
as between the parties who
created the right.
There are however still important differences as

between legal and equitable property rights. These
differences relate to: (a) how the rights are created;
and (b) which third parties they bind.
6.3.2 Rationale for legal and equitable rights
There are reasons for having both legal and equitable

rights.
6.3 Transferring legal and equitable rights
Transfers of these proprietary rights are permitted.

One must however comply with certain formality
requirements.
7. Conclusion
7.1 A bird’s-eye view of topic one
Imagine any plot of land in England and Wales…

7. Conclusion
7.2 Policy issues in land law
We will often encounter cases that raise fundamental

questions about why the courts are deciding cases in
the way that they are, and whether these reasons stand
up to scrutiny.
7. Conclusion
Many factors may influence judicial decision-making in

land law, whether or not they are always openly
acknowledged to do so.
7. Conclusion
The importance of ensuring that

land (as a vital and finite
commodity) is used in an
effective way.
7. Conclusion
The autonomy of an estate owner to decide when to

(and when not to) transfer away, or grant interests
affecting, their estate.
7. Conclusion
A desire to protect persons who, for whatever reason,

are perceived to be vulnerable.
7. Conclusion
The importance of not undermining the aims of

formality requirements for the creation and transfer
of interests in land.
7. Conclusion
The desire to ensure that such formality requirements

do not either unduly prejudice persons or allow
owners to get away with unacceptable conduct.
7. Conclusion
The importance of
ensuring that banks are
able to lend money with
confidence in the security
(i.e. a house) offered for it.
7. Conclusion
The desire for property rights to be sufficiently certain

in terms of their limits and incidents, so that third
parties can be sure of their position without too much
difficulty.

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Adam Baker Law 2270 and 3270

Land Law 2017-2018

Land Law: Topic One

General principles and concepts

The term ‘property’ can be used in three senses.

The terms ‘real property’

In this section we are concerned with ‘land’ in the

Edwards v Lee’s Administrator

Edwards’ land included the entrance to a cave. He

A third of the cave lied under the surface of Lee’s land.

In Bocardo SA v Star Energy (2011), it was held that an

There are nevertheless certain exceptions to the

Ownership of the surface of ‘land’ extends to things

More difficulties can be caused

Constructions include things like walls, houses and

The same issue also arises with objects other than

The burden of proof in both instances turns on whether

The key issue in either event is the objective purpose

Botham v TSB Bank Plc (1996)

Fixtures: bathroom fittings (e.g.

Chattels: fitted carpets, curtains and blinds; kitchen

D’Eyncourt v Gregory (1866)

Statues, figures and vases,

Elitestone v Morris (1997)

A bungalow rested on concrete

Held to be part and parcel of the land.

‘Land’ extends to such portion of the above airspace as

Bernstein v Skyways & General Ltd (1978)

Ds flew over the P’s land for

P’s claim in trespass to land

1) How do proprietary and personal rights differ?

2) How do we decide whether an owner of land has

3) How can novel types of property right come about?

4) What role do the courts play with recognised

Owners of land can confer both ‘property rights’ (also

Property rights over land very significant, as they

B is the owner of a field.

If B sells the land to C, A can assert their right to cross

Return to our previous example. Assume that D, a

A may claim damages (/an injunction) against D.

• By operation of law: this is when a property right

• By intention: this heading covers various situations

Personal rights are

A owns a cinema. Z purchases a ticket to see a film at

If, before Z sees the film, A has

Hill v Tupper (1863)

A company owned a canal. It gave Hill the ‘exclusive

The right was

Tupper put rival pleasure boats on the canal. Hill tried

Only certain types of right can be proprietary. Case law

When deciding whether a property right has arisen by

In all other situations, one takes the

The agreement states that the right is to be

Land law recognises no proprietary right of dog

If matters were otherwise, B could

The list of rights that can be proprietary has not stood

Various cases have concerned new alleged property

The acceptance or rejection of these claims shows the