Property Law

Land Law – Introduction | Land Law – SQE1 & SQE2 Examinations – solicitorsqualifyingexamination.net

Loader Loading...
EAD Logo Taking too long?

Reload Reload document
| Open Open in new tab

 

Land Law – Introduction
(Non-examinable, for information only)
Proprietary / Personal Rights
• Proprietary rights:
o Generally, owner of property has these
o But non-owners of LAND can have proprietary rights in it
o Enforceable ‘in rem’
§ If deprived, you can take action to recover the thing, no
matter who is in possession of property
o Enforceable against third parties
• Personal rights (e.g. in contract, or in land, a licence):
o Not rights in property itself
o Enforceable only ‘in personam’
§ In case of breach, you only have recourse to the owner
§ Can only get damages for breach
o Never enforceable against third party
§ Ownership changes: no rights against new owner for
breach by former owner
Proprietary Rights: Hierarchy
• Crown is owner of all land
• We have lesser proprietary rights = rights of possession for a slice of time
= ESTATES
o Freehold
o Leasehold
• INTERESTS – rights of more limited use
o Rights of drainage, rights of passage (easements)
o Restrictions on use of own land (restrictive covenant)
o Security for a loan (mortgages)
o Beneficial interests in land under a trust of land
o Freeholder offers option to purchase freehold of land
© Liam Porritt 2020 2
Closed list of proprietary rights in land (not altered since 1848)
• Must relate to LAND (for non-owners, this is only way to have proprietary
rights)
• Must be on ‘the list’ of rights which can exist as estates or interests in
land: Ss 1(1); 1(2) and 1(3) Law of Property Act (LPA) 1925
• Must comply strictly with:
o Any definition laid down in statute or case law
§ e.g. lease = arrangement with certainty of term and confer
exclusive possession
o Formalities set down for acquisition
§ e.g. type of document, how signed, by who etc.
• Must be properly protected to be enforceable against a 3rd party (new
owner of land)
o e.g. Parking right is potentially an easement, which is on ‘list’,
definition must be complied with, and must be created using a
deed, and in which case there is a right to park which can be
enforced ‘in rem’.
EXAMPLE 1: Proprietary right in land
• Annie grants Bob a 2-year lease of her house (proprietary right)
• If she refuses to allow Bob into possession
o Bob can claim possession of the house
o He can enforce his right ‘in rem’
• If she sells the house to Charles
o Bob can claim possession of house against Charles
o He can enforce the right against a 3rd party
EXAMPLE 1 v2: Personal right in land
• Bob books a weekend at Annie’s hotel (personal / contractual right)
• If Annie refuses to let Bob in…
o Bob cannot demand to be allowed in as a right
o He cannot enforce his right in rem
o He may get damages against Annie in personam for breach of
contract
• Annie sells to Charles, who refuses entry
o Bob cannot make a claim against Charles
o Cannot enforce a personal right against a 3rd party
… Consider that parties intend to create a lease, but they mess it up. The right is
then purely personal as in example 1 v2.
© Liam Porritt 2020 3
Estates in land: Freeholds
• Fee simple absolute in possession – broadly equivalent to owner of other
property
o Can be inherited by anyone
o Freehold only ends when there is no one who can inherit it under
will or intestacy rules – land goes to the crown, bona vicantia
• Freeholder (grantor) can grant a lesser freehold estate to grantee:
o Fee Tail – estate of inheritance ending with death of lineal
descendants; no longer possible to create (Trusts of Land and
Appointment of Trustees Act 1996).
o Life estate – grants someone freehold for duration of life, often for
tax reasons
§ Estate pur autre vie – estate lasting for life of someone other
than grantee
o Fee simple in remainder or reversion (existing simultaneously)
§ Immediate possession is with life estate
§ … Until Life Estate holder dies:
• A to B for life – A in reversion
• A to B for life, remainder to C – C in remainder
Estates in Land: Leaseholds
• Term of years absolute or ‘lease’
• End of leasehold term, the lease evaporates and immediate possession
reverts to the freeholder
• Subleases – leaseholders may grant somebody else a lease for a shorter
term than their own
o Leaseholds thus go into reversion
o Simultaneous estates, present and alienable (i.e. which can be
dealt with separately, sold, gifted, inherited etc.)
§ Sublease
§ Lease
§ Freehold reversion
• Freeholders, leaseholders and sublease holders all have proprietary
rights – enforceable rights.
• If freehold is transferred / sold – the leaseholder continues to have
proprietary rights, so there is nothing the new freeholder can do –
enforceable in rem
© Liam Porritt 2020 4
‘Interests’ in Land
• Still proprietary rights – still enforceable in rem!
• Easements – rights of way, parking, drainage over somebody else’s land
• Mortgages – rights granted to lender as security for a loan
o Bank gives us a loan and in return we grant the bank a mortgage
which gives them proprietary rights
• Restrictive covenants – agreement re: restrictions on use of property
• Estate contracts – granted option to purchase at price within time
• Beneficial trust interests

Share:

Leave a Reply

%d bloggers like this: