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110 Cards in this Set
- Front
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special characteristics of land which pose challenges? |
* immoveable * unique (hence specific enforceability) * in short supply (pressures of finite with growing population) domestic property also sig social importance - major lifetime asset, 60% private wealth |
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art 8? |
= right to respect for his private and family life, his home, and his correspondence |
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division of land? |
to maximise utility of land, must divide its benefits into multiple units which can then all be enjoyed simultaneously complicates conveyancing however - eg numerous subsidiary rights which then clog title |
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key balance of land law? |
= between free alienability of land and protection of persons holding fragments of benefit eg tenancy, co owners, mortgage - can't actually own land - accident of history and feudal system but useful accepted in LC consultation paper: avoid purchaser being subject to unwelcome/undisclosed interests but ensure that rights remain enforceable/are compensated |
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key mechanism of regulating competing interests? |
= registration of land - all on national and centralised computerised system - inc notice of lesser rights such as easements - clear and efficient mechanism purchasers/mortgagers etc can then check issue = where not advised and do not know to register - some policy suggests that should be enforceable nonetheless need to decide on balance - ongoing tension between certainty and justice LRA: 'heralded a new era for the law of real property' - not complete however eg e conv |
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Cooke on 'perfect register'? |
reality = 'appalling potential for oppression' - more complete the register, the less protection give to those who cannot use it eg will always be case that ignorance/poverty etc will mean that some cannot acquire rights or deprived of those they have |
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reality of land ownership? |
no one owns land, just 'bundles of rights' of varying sizes represented by different estates |
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key land distinction? |
= need to delineate between real property right: 'in rem' - key hallmark is ability to exlude others from land, impact 3rd parties – can attach to the land itself sothat any person who comes into ownership/possession of the land maybe entitled to enjoy the benefits that come with it/be subject to theburden on the land = must be defined, certain and limited to protect enjoyment and efficiency of land personal right: 'in personam' - privity also debate as to whether contract (eg choice) or legally determined, fixed status |
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definition of land? |
Lawof Property Act 1925,Section205(1)(ix): ‘Land’ includes land of any tenure, and mines and minerals, whether or not held apart from the surface,buildings or parts of buildings(whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land. =list rather than definitional - inc intangible - physical asset and rights people enjoy over it land, rights over land, and processes whereby rights and interests are created/transferred = law of real property |
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physical extent of land: horizonatal |
normallydetermined by the position offences and other physical demarcating features plans with conveyance may also provide relevant evidence More issueswhere a division is organic and with the potential to shift – eghedges etc |
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common law presumptions on the horizontal extent of land? |
the ad medium filium rule; - where the boundary between 2 pieces of land is a watercourse, unless something else is agreed it is presumed that the boundary line is the middle of the stream/river etc the ‘hedge and ditch’ rule – boundary = hedge with a ditch next to it – presumption is that the boundary is the side of the ditch furthest from the hedge (historical root – how people used to dig ditches) – parties can agree something different however |
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determination of precise land boundaries? |
statutory procedures exist in registered land LandRegistration Act 2002, s. 60(3) and Land Registration Rules 2003, rr.118-120. - provision for adjudication |
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vertical extent of land? |
= more contentious basic proposition = Accursius of Bologna: ‘the personwho owns the land owns everything upas far as the heavens and down as far as the underworld’
requires qualification in modern context however - Bocardo v Star Energy UK |
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right to enjoy airspace? |
notunlimited Innocentoverflight by aircraft will not constitute an actionable trespass ornuisance provided it takes place at a reasonable height, given thewind, weather and other circumstances (Civil Aviation Act1982, s. 76(1)) |
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ownership of subjacent soil? |
/ right to exploit minerals there qualified in various ways, especially by statute can also be limited contractually eg = valuabletherefore under control of the state – CIA gives state exclusivepermission to allow people to extract alloil/petroleum belongs to the state contrary to the normal principle –state has exclusive permission to allow people to extract this andexploit |
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Treasure Act1996, ss. 1 and 4 |
prima facieobjects buried in the land belong to the owner – not the same aswhen something is on the surface eg as been dropped Treasure Act =exception – some things belong to the crown eg 2+ coins withmore than 10% precious metal and more than 300 yrs old eg 10+ coins,need not be precious metal |
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buildings, fixtures and chattels? |
usuallyarises when the land is sold chattelsnormally belong to vendor however can contract to do somethingdifferent s62(1) LPA 1925 |
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buildings on conveyance? |
Buildings andother erections which are part and parcel of the land pass with itupon conveyance ‘Superficies solo cedit’ (literally, ‘thesurface yields to the land’: i.e. things built on thesurface become part of the land). |
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fixtures on conveyance? |
‘Quicquidplantatur solo, solo cedit’ (whateveris attached to the land accedes to the land) A twin test hasbeen laid down in the case law: the degree of annexation(physical – how firmly is the thing attached) and the purpose ofannexation (is the thingattached to enhance the realty or to enjoy it as a chattel) Degree = primafacie test however can be rebutted under the purpose test + all only default rules - can contract otherwise |
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fixture which rests on its own weight? |
maynevertheless become a fixture if its purpose is the improvement ofthe realty particularly so where objects are part ofthe original architectural design of a house or garden - trumps question of annexation Holland vHodgson – if there is a pile of stones waiting to be used = chattel if there is adry stone wall (eg not fixed with cement, free standing) = part ofland – purpose more important – there as part of the land |
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right to remove in a leasehold tenancy? |
right ofleasehold tenants to remove, beforethe end of their lease or within a reasonable period afterward,fixtures which they themselves have annexed to the land during theperiod of the lease, provided these were for trade, domestic orornamental purposes. -must also make good any damage caused right ofagricultural tenants to remove fixtures = Agricultural HoldingsAct 1986, s. 10; Agricultural Tenancies Act 1995, s. 8. |
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history of the theory of tenure? |
eg don't own land itself butt rather estate stems from feudal pyramid, each person owing service or other dues to his feudal overlord, under a variety of forms of tenure, free and unfree estate therefore simply = ownership of the land for 'a slice of time' economic and social changes then moulded - eg largely coded and refined in years leading up to 26 |
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freehold estates: fee simple ('fee simple absolute in possession' = what ownership normally refers to) (can be legal or equitable but former more common) |
(most common & greatest right - perpetual long term security) 'fee' is a hereditable estate - i.e. one capable of subsisting beyond the lifetime of the current estate owner 'Simple' indicates that no restriction is placed upon how the estate may be devised on death. The estate owner is thus free to alienate the land either inter vivos or on death The fee simple is the most extensive right in land known to the English law - right to use andenjoy land for the duration of the life of the grantee and that ofhis/her heirs or successors - essentially perpetual as paramount ownership of crown in practice irrelevant eg only where fee simple ownerdies without a will or next of kin to inherit under intestate willthe estate have ran its course – will then revert to the Crown |
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fee tail (where exists likely to only be equitable) |
also hereditable, but is distinct in that the current estate owner is not free to devise the land as he chooses; rather, it passes to his lineal descendants - interest rather than an estate designed to keep landed estates in the family now almost extinct:'barring the entail' has been permissible since the 16 century, and the creation of new entails was finally prohibited by the Trusts of Land and Appointment of TrusteesAct 1996, Schl, para 5(1) at death of lastlineal descendant, the land will revert either to the person entitledto the estate in the fee simple, or to the Crown if there is none |
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life interest (purely equitable) |
entitles the estate holder to enjoyment of the land during her lifetime not hereditable, but is alienable during the lifetime of the life tenant: thetransferee will hold an estate pur autre vie entitled to occupationor to rents and profits but must preserve the land's capital value for the benefit of theremainderman, i.e. must not commit acts of waste - entitled to income not capital - duty to preserve common - eg wills to widower then children - protects them comes to an end ondeath and the land reverts to the superior estate owner – normallylong leaseholder or fee simple owner |
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leasehold estate? (generally referredto as a ‘term of years’ however there is no minimum requirement) (can be legal or equitable) |
entitles tenant to enjoyment of land for a fixed maximum period - not perpetual or indefinite - must be ascertainable in advance (unless periodic) - carved out of another estate thus term fixed must be less than that held LPA 1925 s205(1) need some form of consideration - often rent but need not be - eg could be capital flexible - eg can be fraction of year - can have multiple sub lessees |
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length of leasehold term? |
can be for a fixed term or else periodic (yearly, monthly, etc.) Thepayment of rent is a typical hallmark but not an essential requirement A leaseholdestate confers exclusive possession on the tenant (Street v Mountford) |
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simultaneous estate? |
Where there is a leasehold estate, there will also be a simultaneous freehold estate,held by the landlord or reversioner leaseholder is entitled to the use andoccupation of the land and the freeholder to receipt of rent contract of lease will almostalways give rise to a leasehold estate, this not invariably the case: see Bruton vLondon & Quadrant Housing Trust |
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difference between lease/tenancy? |
= synonymous however tenancy tends to indicate shorter period |
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estate in possession? |
brings with it a right to immediate enjoyment of the land,either through use and occupation or receipt of rents and profit - eg not necessarily synonymous with physical occupation [Note that where a freeholder has created a leasehold estate in land, both estates willbe 'in possession', since both carry rights to different forms of immediate/current enjoyment.] |
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estate in remainder? |
the enjoyment of land is deferred until after the expiryof some other estate in possession (e. g. 'To X for life with remainder to Y in feesimple': during X's life, Y will hold an estate in remainder) It is a present right tofuture enjoyment of the land |
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estate in reversion? |
described as being "the residue of an owner's interest after hehas granted away some lesser estate in possession to some other person present right to future enjoyment of the land eg goes back to original grantor not a further remainderman |
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limitations of estates: absolute |
An estate which is absolute is not subject to any conditions or determining restrictions nothing can curtail interest it gives } estates prop in that can be sold/transferredduring the time period for which they exist by the current owner atant time, provided the estate has not terminated |
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limitations of estates: determinable |
A determinable estate is subject to automatic termination on the happening of anuncertain future event. ('To X until... ') equitable only - wholly void if contrary to policy estate effectively= ownership of the land either for a virtually permanent duration(freehold) or limited by agreement to a defined period (leasehold) |
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limitations of estates: conditional |
A conditional estate may also be described as 'an estate subject to a conditionsubsequent'. It may be brought to an end if a condition specified in the grant has beenfulfilled. ('To X on condition that she shall/shall not.. . ') = need to look at wording/intent to distinguish from determinable as different legal effects |
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limitations of estates: contingent |
An estate dependent on a contingency (or 'subject to a condition precedent') makesthe enjoyment of land contingent upon the prior happening of an uncertain futureevent. ('To X if... ' or 'To X when... ') hope of future enjoyment of land - eg reaching certain age |
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s60(1) LPA 25 |
A conveyance of freehold land to any person without words of limitation, or anyequivalent expression, shall pass to the grantee the fee simple or other the wholeinterest which the grantor had power to convey in such land, unless a contraryintention appears in the conveyance = assume absolute unless stated otherwise |
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vesting and estates? |
Estates in possession are 'vested in possession - current enjoyment Estates in remainder and reversion are 'vested in interest only'. They form part of thegrantee's estate and can pass upon death - right but enjoyment deferred Contingent estates are not 'vested' at all. They amount a mere 'spes' giving thegrantee only the hope of a future interest - eg dies with person if condition note met, unlike conditional |
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number of legal estates? |
= reduced to 2 Law of Property Act 1925Section 1(1): The only estates in land which are capable of subsisting or of being conveyed orcreated at law are - (a) An estate in fee simple absolute in possession; (b) A term of years absolute other lesser interests can still exist at law, but other estates merely equitable conditional fee simple however is treated as equivalent to the feesimple absolute and therefore may also qualify as a legal estate: Law of Property Act1925, s. 7(l) |
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other legal rights = interests in land |
= LPA 25 s1(2) eg easement, rentcharge, legal mortgage - denote proprietary rights that oneperson enjoys in the land being listed there necessary but not sufficient requirement for legal status - must also comply with stat conveyancing formalities else equitable if not listed equitable only - 1(3) - eg determinative fee simple, restrictive covenants (not listed in statute) |
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distinction between legal estates and other legal interests? |
now much less important however remain only substantive registrable estates thus key building blocks can both be transferred/sold and may be binding over owner of new estate |
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historical basis of equity? |
Court of Chancery under the auspices of the LordChancellor developed a separate jurisprudence known as equity, founded on broadprinciples of fairness and designed to temper the formal rigours of the common law developed a number of maxims - of particular significance for modem landlaw is the principle that 'equity looks to the substance rather than the form' - less rule bound, more flexible individual justice then merged - empowered to administer both law and equity |
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conflict between law and equity? |
rules of equity prevail - : Supreme Court ofJudicature Act 1873, s. 25(11); Walsh v Lonsdale |
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definitional importance of distinction? |
All estates andinterests in land are either legal or equitable, and this binary classification isfundamental in detennining the security of the estate or interest concerned - ++ eg trusts less important now however due to prevalence of registration - no longer need doctrine of notice |
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what is a settlor? |
person who creates trust - unless declared as a trustee no real further role can create inter vivos or by will |
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trustee? |
vested with formal legal title and deals with the administration of theland: it is the signature of the trustee which is required for any conveyance and thetrustee's name which will appear on the register or deeds of title trustee is notentitled to receive any beneficial enjoyment from the land (though the trust instrumentmay make express provision for payment, e.g. of a professional trustee). |
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beneficiary? |
enjoys the fruits of the land,either through use and occupation or the receipt of rents and profits beneficiary'sinterest in the land is equitable only |
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statutory trust? |
law imposes a statutory trust in all cases where land is co-owned by two or morepersons: see Law of Property Act 1925, ss. 34(2) and 36(1), as interpreted by thecourts Trusts of land are regulated by the Trusts of Land and Appointment of Trustees Act1996. Further general powers and duties of trustees are to be found in the Trustee Act1925 and Trustee Act 2000 Where a trustee acts in breach of trust, she will be liable to a personal action by thebeneficiary |
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requirement for an express trust? |
need written evidence - Law of Property Act 1925Section 53(l)(b) trust may be implied by operation of law. An implied trust may ariseeither statutorily in the case of co-ownership, or else by presumption or constructionfrom the actions of the parties: these latter are termed resulting and constructivetrusts - exempt from need for writing |
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primary contemporary use of trust? |
maximise the tax efficient disposaland management of land. Trusts of land are of particular utility where land isconveyed to a child (see Law of Property Act 1925, s. 1(6)) or to a person subject toany other legal disability; for the creation of successive interests in land; and, mostsignificantly, in cases of co-ownership, where the existence of the trust facilitatesconveyancing through the device of 'overreaching' - rights swept of land for £ |
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vulnerability of trustees despite overreaching? |
Conveyance by sole trustee: If title to the land is unregistered, the security of the beneficiary's interest will dependon the doctrine of notice. See Kingsnorth Finance Ltd v Tizard if registered only protected where in actual occupation so has overriding interst - Bolam etc protection financial only (eg even if family home etc) and may not be adequate eg where acquisition mortgage must be paid off - State Bank of India |
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s52(1) LPA 1925 |
= requirement of deed to convey or create a legal estate otherwise = equitable |
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requirements of a deed? |
= Lawof Property (Miscellaneous Provisions) Act 1989Section1(2):An instrument shall not be a deed unless (a) it makes it clear on its face that it is intended to be a deedby the person making it or, as the case may be, by the parties to it(whether by describing itself as a deed or expressing itself to beexecuted or signed as a deed or otherwise); and (b) it is validly executed as a deed by that person or, as the casemay be, one or more of those parties. |
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s1(3) requirements for deed? |
(a) it is signed — (i) by him in the presence of a witness who attests the signature;or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and (b) it is delivered as a deed by him or a person authorised to do soon his behalf. |
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exceptions to requirement of a deed? |
Section 52(2) of the Law of PropertyAct 1925 lists those legal conveyances not requiring a deed. eg section 52(2)(d): ‘lease or tenancies…notrequired by law to be made in writing’. |
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s54(2) LPA? |
Nothing inthe foregoing provisions of this Part of this Act shall affect thecreation by parol of leases taking effect in possession for a termnot exceeding three years (whether or not the lessee is given powerto extend the term) at the best rent which can be reasonably obtainedwithout taking a fine = does not apply where short term - inc oral so long as taking effect immediately inc if periodical but each term less than 3 yrs |
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writing and declaration? |
LPA s53 need not be contemporaneous - eg can document later - not void without but unenforceable (writing only required with express trusts - eg implied etc lack formalities as equitable) Dispositions of equitable interestsunder existing trusts (whatever the subject-matter) must be inwriting (s. 53(1)(c)): without writing the disposition is ineffectiveand void |
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formalities in relation to contract? - all land, inc unregistered |
Law of Property (MiscellaneousProvisions) Act 1989Section 2: (1) A contract for the sale or other disposition of an interest inland can only be made in writing and only by incorporating all theterms which the parties have expressly agreed in one document or,where contracts are exchanged, in each.… (5) This section does not apply in relation to — (a) a contract to grant such a lease as is mentioned in section54(2) of the Law of Property Act 1925 (short leases)… |
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key principles of land registration scheme? |
The‘mirror’ principle: that the Land Register representsan accurate reflection of land titles and the rights and interestswhich affect them; The‘curtain’ principle: that beneficial trust interestsare kept off the registered title; The‘insurance’ principle: that the state guarantees theaccuracy of the register, and will pay indemnity to any title-holderwho suffers loss by reason of inaccuracy or error. |
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registrable estates? |
principle estates capable ofsubstantive registration with their own title number are the feesimple absolute in possession and legal leasehold estates for termsof more than seven years. See LRA 2002, s. 3(1) and Land RegistrationRules 2003, r. 2(2) |
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registrable charges? |
(legal mortgages) have to be registeredin the charges section of the register, against the title of theestate burdened by the mortgage LRA 2002, Part 5 [Note: Registration ofregistrable estates and charges is a prerequisite to their takingeffect at law; without registration they will be equitable only.] |
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other registrable interests? |
Many other, lesser interests (bothlegal and equitable) can be protected by the entry of a ‘notice’against the title of the relevant estate burdened. Once a notice ofthem has been entered in the register, they will bind a purchaser ofthe burdened estate. Equitable interests under a trust may beprotected by entry of a ‘restriction’, which ensures that therequirements for overreaching are met on any conveyance of the legalestate. |
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unregistered interests which override? |
socially important categories ofinterest which will ‘override’ a registered disposition – thatis, they will bind a purchaser – even though they are not protectedon the register. Interests which override are listed in Schedules 1and 3 of the LRA 2002 |
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when can human rights be considered in Stras? |
* domestic remedies must have been exhausted * must be alleged violation by the state - challenging where violation horizontal - argument must be framed in terms of a failure of the state to maintain a state of domestic law which provides the claimant with sufficient legal protection for her rights - little clarity on when such a positive obligation arises |
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use of HRA? |
– The court is required, so far aspossible, to interpret domestic legislation as compatible with theparties’ human rights (s. 3). – If this is impossible, the courtcan declare that legislation is incompatible with the Convention (s.4). – There is an obligation uponpublic authorities (including the courts) to act in a way which ishuman rights compliant (s. 6). = problems with horizontal enforcement - courts seem reluctant to allow it to play a sig role in substantive land law |
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relevant substantive rights under ECHR? |
Article 1 of the First Protocol:enjoyment of possessions Article 8: respect for the home (not right to a home itself however) - major limitation has been proportionality - eg landlord also has right to possession, need to be able to manage tenants etc Article11 guarantees freedom of peaceful assembly and ofassociation, and it is arguable that excluding persons from public orquasi-public land might impair these freedoms Article6 guarantees the right to a fair hearing. It couldpotentially be used in cases where English land law traditionallygives self-help remedies which have the effect of bypassing the legalprocess (e.g. a landlord’s rights to distress for arrears of rent) Article14 (non-discrimination) is parasitic - strengthens cases eg brought under art 8 |
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overall sense with use of art 8? |
= loggerheads - must be 'exceptional' to apply - Stras more sense of proportionality where fails and no domestic rights renders effectively as a trespasser |
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development of proprietary rights? |
most proprietary rights have beenestablished for centuries and it is generally the technical ruleswhich give rise to litigation there are some areas where therestrictive approach to the range of proprietary interests iscontroversial – eg licenses (not currently proprietary however ++litigation fighting to be recognised as such) land law hinges on the distinction ofproprietary/non proprietary but no clear way to determine which iswhich – simply works well in practice? Distinction as a conceptgradually becoming irrelevant? (MD) – inevitable as registrationand statutes take over? no longer a matter of principle butpracticalities – rights that are necessary and effective can bemade so irrespective of character – simply embracing mostbeneficial ways to deal with land – eg more radical estoppel,contracts and 3rd parties – issues of policy notproprietary distinctions |
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Ainsworth test for prop rights? |
L Wilberforce:(before a right can be considered as in the proprietary category) ‘itmust be definable, identifiable by third parties, capable in itsnature or assumption by third parties, and have some degree ofpermanence or stability’ |
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Dixon on test for prop rights? |
‘thedefinition has merit, but is susceptible to criticism’ - inherentlyopen ended (eg many non proprietary rights are ‘definable’, andnot all proprietary have such qualities – eg adverse possession andstability?) and clearly a circular definition – only if a right isalready proprietary can it be capable of assumption by 3rdparties – does not explain why not intended to bewrit in stone as a definition however – trying to simply identifyattributes which mark out candidates for proprietary status important ideas as such rights can affect the land for considerableperiods of time, irrespective of ownership – policy truths – whatthe rights ought to be |
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should prop rights be listed? |
eg currently room for debate - could establish list for certainty? prefer piecemealchange rather than significant deliberations – simply have usefulbut not definitive dicta and case law examining the proprietarystatus of rights on a case by case basis, particularly as some areonly provisional (eg where estoppel has been relevant) – need tolook at factual background (however reliance on title registrationhides many uncertainties/conceptual deficiencies) also bold to make alist eg and assert that easements are on it – fact based assessmenthas advantage of substantive analysis which labels do not facilitate– eg could just be a license – simply postponing issues |
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writing and prop rights? |
need for writing almost invariably underpins due to LPA 89 but formality is procedural eg does not say anything about substance of the right - may be identical but not prop as created in a different way does not help categorise - eg constructive trusts |
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nature of prop estoppel? |
difficult as remedy discretionary thus cannot know whether right will be proprietary current view is that prop estoppel is a proprietary right however - enjoys all the advantages that appear to accrue to prop rights and can bind purchaser of land = hard to tie prop status to formal procedure and writing |
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link between prop rights and durability? |
= pragmatic,piecemeal developments which suggest that there is no necessarycorrelation between proprietary rights and durability eg ability to pass with ownership not automatic - dependent on registration etc + 99 Act means may be durable even if purely contractual |
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link between prop rights and registrability? |
registers regulateeffect of proprietary rights on land and help make durability apractical reality – LRA and LCA do identify proprietary rightshowever it was never their intent to list them and not all there –looked at anything with an impact on land, proprietary or not thuscan cover a range – also true of unregistered title eg as estoppelnot formally created assignabilitygenerally considered however does not always fit perfectly withproprietary status – eg rights of way cannot be alienated that it has beenassigned does not make it proprietary – object is the contractrather than the land |
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ability to recover the property and prop rights? |
= generallyregarded as an important aspect of proprietary rights however this isalso troublesome – will normally be liability in damages but doesnot necessarily mean that the object itself can be recovered also cannot suggestthat specific enforcement of rights is the same as proprietary status– has become apparent that the courts will specifically enforcecontracts relating to land, even though the limits are as yet unclear– HoL however have made it v clear that this does not mean thatthere is a proprietary interest which can be enforced = neitherassignability of the benefit nor specific recovery can be used tosuggest that a right is/isn’t proprietary – relevant factor butnot decisive |
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types of prop right? |
derivative = wherethey have been acquired from someone else (rather than original –eg finding an abandoned object) * interest may bepassed by transferring possession to the acquirer * expressorally/in writing an intent to create a property right (oralgenerally requires consideration, however there are some exceptionswhere unilateral oral intention suffices – eg declaring oneself astrustee of a property for another person as beneficiary) |
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determining whether something is legal or equitable? |
= quality of right, not the content is the right capable of existing as either a legal or equitable right? (defined in s1 LPA - conclusive) Has the right come into existence in the manner recognised as creating either a legal or equitable right? - did it conform to formality requirements dictated by statute - eg normally deed + registration = some can only be either/or, some maybe both dependent on how they were created |
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when is a prop right equitable in practice? |
Has potential to beequitable for any one of three reasons: excluded ab initio from the definition of a legal estate/interest in the LPA no deed may have been used where it is required, even if under LPA registration may not have been used where it is required, even if under LPA evenif potentially equitable however, this is not enough for it to exist– must still be created in an appropriate manner – have capacityto affect land for many years so must be reasonably certain thatalleged proprietary rights do exist |
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unwritten agreement between parties? |
may still beenforceable between the parties, however it is merely a personallicence void however as a proprietary right generally however verbal agreements cannot be enforced unless estoppel or constructive trusts relevant or before 89 LPA |
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electronic conveyancing? |
s93 of LRA 2002states that the creation/grant of certain specified property rightsmay be required to be carried out exclusively by means of electronicentry on the register against the registered title of the estateaffected – would not exist at all without it, even if paperdeed/contracted existed would be no scopefor legal/equitable distinction as written instruments would be irrelevant – wouldexist through electronic entry or not at all only if mandatory and comprehensive however - seems a long way off |
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third way in which distinction can arise? |
use of trust = perfectlypossible for a single piece of property to be owned by two or morepeople at the same time – may have different quality of ownershipat the same time – eg one may have legal title, other an equitabletitle can exist in manydifferent forms and with different rights/duties imposed dependent onhow the trust was established and any relevant statutory provisions may in someinstances be imposed upon a landowner without deliberate act of trustcreation – creates distinction by force of law |
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creation of trust? |
different butcomplementary set of formalities unless the trust isconstructive/resulting/based on estoppel, a trust must be manifestedand proved by some writing – must be evidenced by the writingtherefore than actually be in the writing itself |
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importance of legal/equitable distinction prior to 26? |
if a proprietaryright was legal, it would always bind every person who came to own oroccupy the land over which the right existed - ‘legal rights bindthe whole world’ equitable rightover land would bind every tranferee except a bona fide purchaser forvalue of a legal estate in the land who had no notice of theequitable right doctrine of notice = vague and confusing however - led to radical modification of rule so that impact of distinction reduced - made substantive and structural changes |
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distinction between registered and unregistered land? |
land of registeredtitle = governed by LPA 1925, CL, and LPA 2002 (latter governs status - legal/equitable quality relevant but not crucial) unregistered land =governed by LPA 1925, CL and LCA 1972 systems = mutuallyexclusive – cannot fall into more than one category mosttitles are already registered and eventually this will be the casefor all, however at present the 2 systems of conveyance operate sideby side – eg dealing with effect on 3rdparties unregistered landis of diminishing importance – both legally and practically - notice irrelevant under LRA 2002 |
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equitable rights in unregistered land? |
= 3 distinct categories * land charges within LCA 72 - registered against owner - completely different system * not registrable under LCA but effectiveness determined by old doctrine of notice * rights that are overreachable - eg neither land charges nor notice - easily quantified in money thus do not bind new purchaser |
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power of deed? |
= sig - more or less any interest can be created or transferred by deed, whether or not there is consideration even where writingwould not suffice (eg gift of a chattel) a deed will be effective also effective increating obligations – basic common law premise is that gratuitouspromises are not enforceable as contracts require consideration –even gratuitous deeds can be enforced = essential for thetransfer or creation of most legal interests in land – can nolonger simply just give possession |
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delivery of a deed? |
(eg no longer need sealing) simply means intent to be bound by a deed - readily found can also execute a deed conditional upon some event - will never come into effect if condition does not arise deed must be witnessed however and be clear on its face that it is intended to be a deed (need both) - word deed itself not essential but must be something more than intention of formal binding document |
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criticisms of s2 1989 act? |
intended to allow certainty however many feel it has simply introduced more uncertainty for the unwary - traps therefore flow of litigation continues does mean correspondence in land contract less risky however - eg prev had to state that everything 'subject to contract' - now much harder to be bound due to need for writing |
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when does s2 apply? |
not only to sale of land but also anycontract for an interest in land (eg lease/mortgage), and contractsdisposing of such interests - does not apply to the actual disposalitself legal or equitable other than exceptions eg short term lease not simply contract relating to land - eg not clarifying boundary as not transferring |
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concern over strictness of s2? |
eg may lead to people trying to get out of things by thinking of an express term which was not written in the contract |
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what is an option? |
constitutes anirrevocable offer by the owner to sell – offer is accepted by theexercise of the option, and this acceptance of the offer constitutesa normal contract of sale where the purchaserseeks specific performance, he is enforcing the new contract of sale,rather than the option clearly original option has to be in writing but does exercise of option have to be in line with s2? x - eg invariably a unilateral act, whereas s2 requires signature from both - pre emption not an interest in land |
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agents and the 1989 Act? |
questions may ariseas to identification of the parties if the contract is signed by anagent – must be specifically authorised to enter into the contract– remains unclear as to how much latitude will be given if thevendor is not referred to in the contract – used to be acceptableto refer to the seller as proprietor but unclear agents who contractwithout disclosing that they are agents? - pre 1989 this did notprevent the undisclosed principal from suing/being sued on thecontract, presumably still applies – surprising but does not dependupon any of the terms of the contract |
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omitted terms in a deed? |
prima facie, wherea term is omitted from the signed document the contract is void,however LC envisaged that in some instances the omission might becorrected by rectification rectification hasbeen ordered where the written contract omitted a reference tocontents being included in the price, however the omission mustrepresent a mistake in the drafting eg the contract – does notapply invariably where void eg deliberateomission, where another term has been agreed to after the writtencontract has been settled in draft, will not trigger rectification |
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where rectification not available? |
where rectificationis not available, an omitted term may still take effect under acollateral contract clear that this was intended to survive the 1989Act however = conflict between 2 objectives – eg that all termsshould be written and that it would be unreasonable to deny alleffect to a written contract when a clause has been omitted Record v Bell: reflectsclear preference for giving effect to the contract but seems to suggest it is no longer the case that person with benefit of the omitted clause can simply waive it and enforce the rest of the contract parties can also decide to embody part of their agreement in a separate contract to long as land contract not conditional on 2nd |
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incorporation by reference? |
prev possible to incorporate another document by reference (Timmins v Moreland) however signed memorandum must expressly or by necessary implication refer to another document eg not sufficient that they fit together when put side by side presume that similar rule applies under 89 but not clear eg whether mere physical attachment will suffice |
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need for signature? |
= requirement but no need that document be signed in any particular place eg can be signed before there is a contract but if there is then an amendment before the contract comes into being,there appears to be no effective signature old approach = generous – allowed simply writing a name to count asa signature – no longer enough that it be printed/typed however |
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subsequent variation? |
McCausland vDuncan Lawrie Ltd holds that thestrict requirements of the 1989 Act are applicable to variations ofthe contract original contract remains enforceable if the variation is ineffective oral rescission = effective under the old law – would seem odd ifsuch a compromise now had to be in writing signed by both parties |
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part performance? |
eg prev requirement of writing was overlooked by equity where there had beena part performance of a contract LC = critical of the part performance rule due to the uncertaintiessurrounding its application however not explicitly rejected by theact United Bank ofKuwait plc v Sahib: confirmsthat the doctrine can no longer apply – was based on the old rulethat an oral contract was unenforceable rather than void do have constructive trust/estoppel however - allowed under 89 Act |
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L Neu (extra judicial) and estoppel under s2? |
should operate where there is a belief (encouraged) that there is abinding obligation under Cobbe however may be harder to argue in sale of land contract - ++ where C is a businessman |
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benefits of 1989 Act? |
enables much of the old law to be forgotten - ‘that is to bewelcomed’ however there are still a number of doubts/uncertaintiessurrounding the need for writing – as demonstrated by flood oflitigation also worrying that there is uncertainty as to the application ofestoppel in cases previously covered by part performance ‘overall, one cannot help thinking that the Act is adisappointment’ (Smith) |
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variation of a deed? |
can be done by oral contract - good idea in land context? |
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creation of interests in land? |
regulated by Law of Property Act 1925 – general rule is that allinterests must be created by writing signed by the person creatingthe interest s53(1)(a) and legal interests must be created by deeds52 principal exceptions = assent by personal representative (only writing) and short leases (though do require writing for them to be transferred) periodic tenancies - never more than 3 yrs thus don't require a deed |
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s93 LRA? |
= ultimate aim - compulsory e conv for interests which are not informal/arise by operation of law without electronic entry there would be no prop interest, no question of protection eg would not even be a contractual/other personal right - if it is not complied with there is no form of obligation - absolute title by registration v slow phasing in however will be radical change for conveyancers - potent growth in estoppel based arguments? raises technical issues of security |
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when is the distinction between types of rights of most importance? |
(eg personal/property/simply a trespasser) broad terms: while the owner is still there, it does not hugelymatter whether land is personal or property – both based oncontract, can sue for breach of contract – no more advantageagainst the giver of the right to a property right – depends onterms of contract importance of distinction therefore arises where giver sells or transfers land - personal incapable of taking effect against them whilst prop is capable, will not do so per se - need to determine status of rights don't change however their nature can - eg may morph into a property right - ++ eg easements |
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are property rights always better? |
not necessarily - dependent on situation eg college = mere licence as they are still in control, responsible for upkeep |
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Conclusions of McDonald? |
could not intervene where there are already legislative provisions to maintain the balance between landlords/tenants even if s8 applied could not read down and maintain ‘essential principles’ (Ghadain) – would have to be s4 dec of incompatibility even if disproportionate could not have dismissed the claim – at most could have delayed possession for 6wks importance of certainty for private landlords that they know when they let out their homes they can get them back in their possession if rent is not paid = remains to be seen whether Stras will agree - eg not unreasonable but they traditionally favour broader conceptions of ECHR |
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Thompson on debate surrounding Pinnock? |
resultof fundamental disagreements over whether human rights (which publicauthorities lack) or the vindication of property rights (‘one ofthe most powerful influences in English law’) ought to prevail case shows that the former has – important from a practical and atheoretical perspective – demonstrates that whatever thesubstantive law, as far as public bodies go it will always bepossible for possession orders to be overridden if considereddisproportionate (has suggested that this will be rare) ensuresthat there is a mechanism for factual disputes to be resolved howeveris a wider basis than ordinary JR (though author was against itsextension to the private sphere – see Donovan) Abilityto vindicate property rights = sig power wielded by judges, hence therecent disagreements |
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Thompson on Pinnock and private bodies? |
should not impose duties on them Concentration on procedural aspect of art 8 = important – correctas a matter of public law in that it puts the focus on the duty oflocal authorities to perform its functions in a manner consistentwith Convention principles not appropriate to impose where private |
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doubt cast initially over Pye v UK? |
egPractice Guidance issued by the Land Registry indicated that anadverse possessor must establish a degree of possession that wasinconsistent with the use or intended use of the land by theregistered proprietor – after case of Beaulane Properties Ltd vPalmer – said that only in this way could loss of title throughadverse possession fit with human rights principles rejected in Olufue v Bossert - eg even if Stras not directly binding, must be good reason to depart from it else would sig reduce influence |
