DOCSLIB.ORG

Tort Law Generic Feedback 2020 V0.1

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Tort Law Generic Feedback 2020 V0.1 Land Law CONTENTS PAGES CHAPTER 1 OUTCOMES 2 INTRODUCTION TO LAND LAW 3-8 ESTATES AND INTERESTS IN LAND 9-18 REGISTERED AND UNREGISTERED LAND 19-25 CHAPTER 2 OUTCOMES 26 CO-OWNERSHIP 37-36 EASEMENTS 36-49 COVENANTS 50-61 CHAPTER 3 OUTCOMES 62 MORTGAGES 63-69 RESIDENTIAL TENANCIES 70-77 LAND AND LITIGATION 78-106 2 Chapter 1 Learning outcomes After studying this chapter you should understand the following main points: þ the distinction between proprietary and personal interests and its relevance to land; þ freehold and leasehold estates and legal and equitable interests in land; þ legal and equitable formalities for the creation and disposition of estates and interests in land; and þ priority of interests in registered land. 1.1 Introduction to Land Law 1. Introduction Land law is the rules that govern the land and anything attached to it (such as trees or buildings) or anything in it (for example, treasure or oil). Land Law focuses upon the uses and supply of land, how an owner may use their land or dispose of it. It also looks at how others may use land and how interests in land may be developed through usage. There are different interests that a person may have in land and the law seeks to resolve conflicts about those interests through statute, common law and equity. Key areas of court action relate to disputes over ownership of land, rights across land, rights in relation to the use of land and boundaries between neighbouring land. 2. Property Land is property but the queston then arises as to what property is. English law divides all property into: þ real property (realty); and þ personal property (personalty). The only realty (real property) is a freehold interest in land. Leasehold land is classed as personalty (personal property). For all practical purposes, the Law of Property Act 1925 treats both land interests as similar; if the holder is deprived of the land, he can recover the land, the law will not assume that compensation in the form of money is sufficient. Apart from leasehold land there are two other types of personal property: þ choses in possession; and þ choses in action. Choses in possession consist of all tangible property except land, whilst choses in action consist of intangible property, intellectual property for example. Personal property may also be known as chattels. Chattels can be subdivided into chattels real and chattels personal. The major distinction between real property and personal property is in respect of the contractual requirements for their sale or purchase. Contracts for the transfer of either personal or real property must meet the normal contractual requirements of offer and acceptance, consideration and an intention to enter into legal relations. A contract for personal property can be made orally, but a contract for the transfer of land must comply the formalities of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. These formalities require the agreement to be in writing, contain all the terms and be signed by both parties (or there must be an exchange of duplicates). The agreement is void if these requirements are not met. The transfer of an estate or interest in land usually has to be by deed in accordance with section 52 of the Law of Property Act 1925. There must be the following three elements to make up a land transaction: © Association of Costs Lawyers Training 2020 3 Sale "subject to contract": The buyer and seller make representations and an informal agreement is reached as to the terms of sale. Exchange of contract: This is when an agreement becomes legally enforceable. The agreements are signed and the parties are bound to complete the property transaction. If either side defaults, legal action could be taken. At this stage the buyer does not have full property rights, but he does hold an interest in it. The party is not the legal owner and does not yet have the right of possession. Completion: This happens when property is transferred from one party to another. This must be by deed (section 52 of the Law of Property Act 1925). If an owner of real property had been dispossessed of his land he could issue proceedings for the return of that land. This type of court action would be known as a “real action” or an action in rem. This action could not be used to recover personal property – an action in damages is the appropriate action here. Such a court action would be known as a “personal action” or an action in personam. 3. Land 3.1 The statutory definition Section 205(1)(ix) of the Law of Property Act 1925 provides that land is formed of hereditaments. Hereditaments are rights capable of passing to heirs by way of inheritance. Some of these hereditaments are corporeal which means they are made up of physical land and its attachments. Corporeal hereditaments include land held under any tenure, any mines, minerals and any buildings or parts of buildings. Some hereditaments are incorporeal. This means that they are rights and not things. Easements and profits are types of incorporeal hereditaments. 3.2 The common law definition The common law definition of land stipulates that land includes the land surface, mines and minerals underneath, buildings on land and things attached to buildings, airspace above land and intangible rights attached to land such as easements. So, the common law definition means land includes the subsoil and minerals - the landowner usually owns items buried underneath his land, unless the true owner of those items is known. There are two common law presumptions from the definition of land: þ he who owns land owns everything extending to the heavens and to the depth of the earth; and þ whatever is attached to the ground becomes part of it These presumptions are, however, limited. Land includes all the airspace above the land and all the ground below it, at least in theory, down to the centre of the earth. In Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 344 a sign protruding over a neighbour’s airspace was held to be a trespass. In Bernstein v Skyviews (1978) QB 479, Lord Bernstein failed to prevent aerial photographs of his house being taken by an aircraft from a reasonable height above © Association of Costs Lawyers Training 2020 4 the ground. The court held that an estate owner had no greater right than any member of the public to altitudes above that “necessary for the ordinary and reasonable enjoyment of the land.” Furthermore, section 76 of the Civil Aviation Act 1982 provides that no action in trespass lies against aircraft flying over the estate at a reasonable height. This will, however, depend on the use of the land and the height of any buildings on it. In Anchor v Brewhouse Developments v Barkley House (Docklands) Developments (1987) 2 EGLR 173 the jib of a crane trespassed in the airspace above the claimant's property. An injunction was granted to prevent this happening again. There are also limitations on ownership of land beneath the ground. At common law, gold and silver belong to the Crown and, by statute, oil and natural gas also vest in the Crown. The law recognises that mines and minerals, certain water-courses and "treasure trove" (now “treasure” governed by the Treasure Act 1996) are not part of an estate. Statutory powers for utility and transport organisations to lay pipes, wires and tunnels and rights to coal and oil further mitigate the notion that the estate runs to the depths of the earth. 3.3 Fixtures and Fittings An important distinction is made between “fixtures” and “fittings”. A fixture is, in terms of property, realty. Therefore, unless expressly excluded, a fixture will be sold with the land because it is land. By virtue of section 62 of the Law of Property Act 1925, a fixture will be included as part of a conveyance of land which is where land is given by one party to another, conferring all of the rights and obligations over that land according. Fittings are personalty, i.e the personal effects of their owner, and can be sold separately to the land or removed by their owner. The original test that was devised by the courts to distinguish fixtures (land) and fittings (chattels) was the "degree of annexation test", i.e the extent to which the item has been attached or annexed to the property. Problems arose with this test because of "temporary" or "lean to" buildings. Other things attached to land were seen as land as long as they were firmly attached, thus if a one-ton statue was bolted down it was land and if it was not bolted down then it was a chattel. The problem was recognised by the courts and they addressed the issues with consideration of whether things on the land formed a part of an "architectural scheme of decor". A tapestry nailed to the wall which was in keeping with a theme of decoration was land (Leigh v Taylor [1902] AC 157) whilst one simply nailed to the wall so it could be seen was not (Re Whaley [1908] 1 Ch 615). However, the narrow application of the idea of a “scheme of decor” is of limited use in the context of modern home ownership. Therefore, a more modern test was developed. © Association of Costs Lawyers Training 2020 5 The more modern test, originally devised in Hellawell v Eastwood (1851)155 E.R. 554, was a two stage test and required the courts to ask what was the "purpose of annexation".
Load more

Recommended publications
  • 7 - Interests in Land - Easements
    7 - INTERESTS IN LAND - EASEMENTS Definition An easement confers the right to use the land of another in some way, or to prevent it being used in a certain way. Examples are a right of way and a right of light. A legal easement is not merely a right in personam but in rem; it permanently binds the land over which it is exercisable and permanently avails the land which it benefits. Characteristics of an Easement The following 4 essential must be present in order for an easement to exist Re Ellenborough Park [1956] Ch 131: - there must be a dominant and servient tenement; i.e. one plot of land must have the benefit of the right and another plot must have the burden, it cannot exist independently of the ownership of land, an easement must be appurtenant (attached) to a dominant tenement and will pass on a transfer of the land - S.187 LPA 1925. - the right must accommodate the dominant land i.e. it must be of benefit to the land and not for example a personal right granted to its owner Hill v Tupper(1863) 2 H&C 121 - the dominant and servient tenements must not be both owned and occupied by the same person, note quasi-easements under Wheeldon v Burrows [1879] 12 Ch D 31; London v Blenheim Estates Ltd v Ladbroke Retail Parks Ltd (1993) - the right claimed must be capable of forming the subject matter of a grant i.e. of being granted by deed and therefore (i) There must be both a capable grantor and grantee.
    [Show full text]
  • Rights to Light Consultation
    Law Commission Consultation Paper No 210 RIGHTS TO LIGHT A Consultation Paper ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Lloyd Jones, Chairman, Professor Elizabeth Cooke, David Hertzell, Professor David Ormerod and Frances Patterson QC. The Chief Executive is Elaine Lorimer. Topic of this consultation: This Consultation Paper examines the law as it relates to rights to light. Rights to light are a type of easement which entitle a benefited owner to receive light to his or her windows over a neighbour’s land. We discuss the current law and set out a number of provisional proposals and questions on which we would appreciate consultees’ views. Geographical scope: This Consultation Paper applies to the law of England and Wales. Impact assessment: In Chapter 1 of this Consultation Paper we ask consultees to provide evidence in respect of a number of issues relating to rights to light, such as the costs of engaging in rights to light disputes. Any evidence that we receive will assist us in the production of an impact assessment and will inform our final recommendations for reform. Availability of materials: The consultation paper is available on our website at http://lawcommission.justice.gov.uk/consultations/rights-to-light.htm. Duration of the consultation: We invite responses from 18 February 2013 to 16 May 2013. Comments may be sent: By email to [email protected] OR By post to Nicholas Macklam, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Tel: 020 3334 0200 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, whenever possible, you could also send them electronically (for example, on CD or by email to the above address, in any commonly used format).
    [Show full text]
  • Property Law Notes
    Property Law Notes Part 1 out of 2 [125 pages] Contents: Definitions: What is Property? Distribution of Property Taxonomy Possession + Interference with Possession + Relativity of Title Ownership Tenure and Estates Introduction to Freehold & Leasehold Covenants Personal Property Rights: Security Interests Fixtures and Mixtures Sale of Goods Creation and Transfer + Formalities + Conveyancing Priorities at Common Law + Priorities in Equity Easements and Profits 1 What is Property? Right in rem = a right to a thing which is enforceable generally against other members of society. Right in personam = a right to a thing which is enforceable only against specific persons. The division between property rights and personal rights is based on the enforceability of that right. Wide definition – assignability of rights: Most rights in rem and rights in personam can be transferred to others, and most have value. If can be assigned to third parties, indicates they might be proprietary in nature. A right that can be transferred to others may have value because it can be sold. These rights count as assets. Can consciously/actively assign property rights, or might be assigned to a third party by operation of law: o Death (intestacy provisions or will) o Bankruptcy (Insolvency Act, property is assigned/transferred to trustee in bankruptcy) o Wealth Some in rem rights can’t be assigned so wouldn’t be recognised as proprietary under the wider definition of assignability. Some things are in rem proprietary rights that can’t be assigned, e.g. non-assignable lease, easement (if you don’t have the DT or ST). One way to destroy an in rem right is to destroy the thing to which it relates.
    [Show full text]
  • Report 73: Unilateral Severance of a Joint Tenancy
    NSW Law Reform Commission: REPORT 73 (1994) - UNILATERAL SEVERANCE OF A JOINT TENANCY NSW Law Reform Commission REPORT 73 (1994) - UNILATERAL SEVERANCE OF A JOINT TENANCY Table of Contents Table of Contents....................................................................................................... 1 Terms of Reference and Participants......................................................................... 2 Executive Summary ................................................................................................... 4 Summary of Recommendations ................................................................................. 6 1. Introduction ............................................................................................................ 8 2. Background .......................................................................................................... 10 3. Existing Methods of Unilateral Severance............................................................ 14 4. Shortcomings of the Existing Modes of Effecting Unilateral Severance ............... 20 5. Why Should Unilateral Severance be Simplified? ................................................ 28 6. Reform in Other Jurisdictions ............................................................................... 32 7. Recommendation: Unilateral Severance by Registration of a Declaration of Severance ................................................................................................................ 35 8. Features of the System of Severance
    [Show full text]
  • Sharing Homes: a Discussion Paper
    The Law Commission (LAW COM No 278) SHARING HOMES A Discussion Paper Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty November 2002 Cm xxxx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman 1 Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Discussion Paper was first published online on 18 July 2002. The text of this Discussion Paper is available on the Internet at: http://www.lawcom.gov.uk 1 At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO. ii THE LAW COMMISSION SHARING HOMES A Discussion Paper CONTENTS Paragraph Page Executive Summary vi PART I: INTRODUCTION 1 The shared home 1.6 2 A property-based approach 1.23 6 PART II: THE CURRENT LAW 9 Introduction 2.1 9 Trusts of land 2.4 10 Legal and beneficial ownership of the shared home 2.10 11 Legal title – joint tenancy 2.12 11 Beneficial ownership- joint tenancy or tenancy in common 2.16 12 Resolution of disputes between trustees and beneficiaries 2.23 14 Dealings with third parties 2.27 15 Occupation of the shared home 2.32 17 Where a person has an interest under a trust of land 2.34 17 Matrimonial home rights 2.37 18 Orders regulating
    [Show full text]
  • Introduction What Is Land?
    Introduction What is Land? - LPA 1925, s 205: ‘Land’ includes land of any tenure, and mines and minerals…’ land includes not just tangible physical property, but also intangible rights in the land, such as the right to walk across a neighbours driveway. - Land is the physical asset and the rights the owner and others enjoy over it. ‘The idea of property in land’ – Kevin Gray and Susan Francis Gray - The idea of property is fragile, elusive and misused - Property is not a thing but a relationship - Property is the word used to describe particular concentrations of power over things. Statutory Formalities: LPA 1925: - Provided a redefinition of what rights could be legal or equitable - Says a lot about joint ownership, creation of proprietary interests, nature of fee simples and leaseholds LPA 1925, s1: - Legal Estates and Equitable Interests - (1) The only estates in land which are capable of subsisting or of being conveyed or created at law are— . (a) An estate in fee simple absolute in possession; . (b) A term of years absolute. (2) The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are— . (a) An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute; . (b) A rentcharge in possession issuing out of or charged on land being either perpetual or for a term of years absolute; . (c) A charge by way of legal mortgage; . (d). (e) Rights of entry exercisable over or in respect of a legal term of years absolute, or annexed, for any purpose, to a legal rentcharge.
    [Show full text]
  • June 17 Land
    Chief Examiner’s Report The purpose of the report is to provide feedback to centres and candidates on the candidates’ performance in the examination with recommendations about how any issues identified may be addressed. The target audience for this report are centre tutors and candidates. The report should be read in conjunction with the Suggested Answers for the examination. Unit Name: Level 6 Unit 9 Land Law Exam Session: June 2017 CANDIDATE PERFORMANCE OVERALL Candidate performance was of a very good standard with a pass rate of 64%. It should be noted that this is an improvement on the pass rate of the previous two examination sittings and with a higher number of candidates achieving grades of merit and distinction. Higher achieving candidates demonstrated not only breadth but also a depth of sound knowledge and application of the rules and principles that govern land law and as a consequence were able to answer four questions to a consistently high standard. However, it was evident that those who performed less well, including those who failed, were unable to provide four consistently good answers often producing only one or two to the requisite standard. As previously reported, common issues found in relation to both problem questions and essays include candidates failing to tailor their answer to the specific question either writing all they know on a topic or providing generic rote learnt answers. These answers achieved few, if any, marks due to the vast amount of irrelevant legal content. Furthermore, quoting sections of material from the statute books also achieves no marks, no matter how accurately recorded.
    [Show full text]
  • Project No 78
    THE LAW REFORM COMMISSION OF WESTERN AUSTRALIA Project No 78 Joint Tenancy and Tenancy in Common REPORT NOVEMBER 1994 The Law Reform Commission of Western Australia was established by the Law Reform Commission Act 1972. Commissioners Chairman Mr P G Creighton BJuris (Hons) LLB (Hons) (Western Australia) BCL (Oxford) Members Dr P R Handford LLB (Birmingham) LLM PhD (Cambridge) Ms C J McLure BJuris (Hons) LLB (Hons) (Western Australia) BCL (Oxford) Officers Executive Officer and Director of Research Dr P R Handford LLB (Birmingham) LLM PhD (Cambridge) Research Officers Mr M G Boylson LLB (Western Australia) Mr A A Head LLB (Western Australia) Staff Mrs S K Blakey Ms K L Chamberlain Mr L McNamara BA (Murdoch) Ms M A Ryan The Commission's offices are on the 11th Floor, London House, 216 St George's Terrace, Perth, Western Australia, 6000. Telephone: (09) 481 3711. Facsimile: (09) 481 4197. _____________________ A draft of this Report was prepared with the special assistance of Dr J Mugambwa LLB (Hons) (Makerere), LLM (Yale), PhD (Australian National University), Senior Lecturer in Law in the Law School at Murdoch University. The Commission is much indebted to him for his valuable work on the Draft Report. To: HON C L EDWARDES MLA ATTORNEY GENERAL In accordance with the provisions of section 11(3)(b) of the Law Reform Commission Act 1972, I am pleased to present the Commission's report on various aspects of the law relating to joint tenancies and tenancies in common of real and personal property in law and equity. PG CREIGHTON, Chairman 22 NOVEMBER 1994 CONTENTS Paragraph Table of abbreviations CHAPTER 1 - INTRODUCTION 1.
    [Show full text]
  • Land Law Lawcards 2012-2013
    Land Law 2012–2013 223657.indb3657.indb i 110/28/110/28/11 3:263:26 PMPM Eighth edition published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Routledge All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identifi cation and explanation without intent to infringe. First edition published by Cavendish Publishing Limited 1997 Seventh edition published by Routledge 2010 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978–0–415–68343–2 (pbk) ISBN: 978–0–203–30845–5 (ebk) Typeset in Rotis by Refi neCatch Limited, Bungay, Suffolk 23657.indb ii 10/28/11 3:26 PM Contents Table of Cases v Table of Statutes xv Table of Statutory Instruments xxiii Table of European Legislation xxv Abbreviations xxvii How to use this book xxix 1 Fundamental concepts 1 2 Conveying title to land with unregistered title 11 3 Transferring title to land with registered title 19 4 Adverse possession and boundaries 31 5 Trusts of land 39 6 Resulting trusts, constructive trusts, proprietary estoppel and licences 53 7 Leases 67 8 Mortgages 85 9 Easements and profi ts à prendre 97 10 Freehold covenants 109 11 Putting it into practice .
    [Show full text]
  • Easements Issues Paper A4
    T A S M A N I A LAW REFORM I N S T I T U T E Law of Easements in Tasmania ISSUES PAPER NO 13 FEBRUARY 2009 CONTENTS About this Issues Paper ................................................................................................................i How to respond........................................................................................................................i Information on the Tasmania Law Reform Institute..................................................................i Acknowledgments...................................................................................................................ii Glossary.................................................................................................................................iii List of Questions..................................................................................................................... v Part 1 – Introduction ...................................................................................................................... 1 1.1 Background ................................................................................................................... 1 Part 2 – The Current Law in Tasmania........................................................................................... 3 2.1 What is an easement?..................................................................................................... 3 2.2 Express grant or reservation..........................................................................................
    [Show full text]
  • I Welcome to the Property Law I Course. the Materials Which Will Form the Basis of the Lecture Progr
    1 2017-2018 PROPERTY LAW - I Welcome to the Property Law I course. The materials which will form the basis of the lecture programme are attached. Please bring them along to all sessions. Also included are questions, which we shall go through in class and past papers, which you can browse at leisure. The examination is a 90 minute, closed book exam. It will take the following format: The exam will comprised of two parts, Part I and Part II. There will be two questions in each part. Part I will contain essay questions and part II will contain problem questions. You must answer two questions, one from part I and one from part II. The questions in Part I are problem questions and in Part II essay type questions. If you need to contact me please use the following email address: [email protected] You may wish to purchase a textbook. The one I recommend is: Textbook on Land Law, Judith-Anne Mackenzie, published by Oxford University Press Contents Introduction Estates and interests in land Acquisition of land – contract and conveyance Acquisition of land – adverse possession Leases Easements Restrictive covenants 2 Topic ONE INTRODUCTORY LECTURE A. The Meaning of Property Property is a relationship between people and a thing, rather than the thing itself. Property is a construct of the law. It is the rights we have against other people recognised by our legal system in relation to a thing we claim to own. Land law is concerned with the relationship people have with land and the state of that land.
    [Show full text]
  • Introduction to Land
    ‘The text is clear and easy to understand. It explains the issues very well indeed without over-simplifying fundamental points.’ Introduction to Land Law Introduction Dr Janine Griffi ths-Baker, Senior Lecturer, School of Law, University of Bristol ‘A clear, concise and accurate introductory text written by a leading authority in land law.’ Introduction to Dr Antonia Layard, Lecturer, School of Law, Cardiff University ‘Comprehensive and well-structured.’ Shan Cole, Senior Lecturer, School of Law, University of Glamorgan Land Law Roger Smith’s Introduction to Land Law presents a SECOND EDITION straightforward account of the law and its effects, giving a clear and accessible explanation of concepts students often fi nd diffi cult to grasp. It illuminates the interesting and thought-provoking issues stemming from land law. Roger J. Smith A unique chapter structure allows students to understand the fundamental place and practice of each subject area before delving into some of the deeper matters they will be expected to engage with throughout their course: • Nature and importance sets out, by use of examples, how the law functions and why it is important. Do you want to give yourself a head start come • Main issues and rules clearly explains the key exam time? principles in detail, including case analysis and diagrams where helpful. • Critical and controversial issues introduces areas Visit www.mylawchamber.co.uk/smithintro of topical debate and controversy, outlining the key to access interactive quizzes, sample issues and arguments, then encouraging students to exam questions with answer guidance, and form their own assessment of the law in each area.
    [Show full text]