DOCSLIB.ORG

Property Law Notes

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read 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. They bind the whole world to respect the right, e.g. an easement. Yvonne promises Xavier to keep off Zoe’s land. Is Xavier’s right different from Zoe’s? What is the difference? Content of the right is exactly the same. The only difference is that X's right is enforceable only against Y, but Z's right is enforceable against everyone. Theory that the difference between rights in rem and rights in personam is the number of people the right can be enforced against. Rights in rem about the thing not the person, you know you are not supposed to go on the person's land, don't care about the person, doesn't matter to you who has the right. Just know that you don't have the permission to interfere with that thing. 2 Essential characteristics of property Value, permanence, assignability, enforceability, excludability, or something else? Right to the thing in question, corresponds to a general duty to ensure others do not interfere or perform other things to it. Things that are inhibited or things that are mandatory. Own land can prohibit you from passing over it unless you have right of way. Mandatory obligation to only walk on land you have the right to walk over. Land is unique in that you can’t revoke agreement to sell, can have specific performance ordered. Is property different from wealth? Is wealth transferable? Wealth/value is the measure of property rights you have. King v David Allen & Sons Billposting Ltd [1916] UKHL 1 Narrow meaning of property = based on enforceability Who can this right be enforced against? Was the plaintiff’s right to post bills on a wall a right in rem enforceable generally against others or a right in personam enforceable only against the person who granted it? K made contract with D to allow D to post bills on wall of cinema to be built on K’s land D had rights to advertise on a billboard. K and others created company to build cinema, K leased land to company, which built cinema. New occupants aware of the agreement but did not formalise it. Company refused to let D post bills. Did D have a property right to post bills? Company wins, D loses. Goes to HL. Right that relates to a specific thing. Not enforceable against others, can only be enforceable against K. Personal right, not a property right. K said it was to do with the company, court decided it was to do with K not the company. K didn’t realise that the licence not being factored into the agreement would result in it being pushed away. In English law, can't have free standing right to wall, can have specific right to post ad on wall. D only had a personal right It is a property right in personam. This is the kind of thing where you can request specific performance, building is unique in quality/characteristic (not like selling a chair, can replace with another chair). K had to pay damages. 3 Grady v HM Prison Service [2003] EWCA Civ 527 Wide meaning of property = assignability, is this right assignable? Is a claim for unfair dismissal an assignable right? G’s claim for unfair dismissal was struck out G appealed to Employment Appeals Tribunal, became bankrupt while she is making the appeal. When she went bankrupt, her assignable rights were giving to trustee bankers. Property of a bankrupt vests in the trustee. Was G’s right to appeal “property” which vested in her trustee in bankruptcy? Is trustee custodian to all her rights? Entitled to damages that she gets? Prison Service said that this right to claim was assigned away. Court said not assignable, personal to Grady. Trustee did have standing to represent Grady because proceedings already happening. G had standing, personal claim that she started before bankruptcy. Court says trustee is advocating on behalf of G. Wrongful dismissal in labour law is assignable because claim for damages in lieu of notice. Unfair dismissal is a statutory wrong, one remedy is reinstatement into the job. That's why it was personal to Grady. Grady makes the claim before she is bankrupt Important because trustee cannot be reinstated in the job. Property rights we can acquire as an individual may or not be transferable. Had she been awarded damages, would be okay, would fall under job of trustee anyway. Court ruled in here that it is a personal matter, not property one. G can bring claim, but she can’t get the award for the claim because it is a personal right. Foley v Hill (1848) 2 HLC 28, 9 ER 1002 Fundamental nature of bank account and nature of bank’s relationship with customer in relation to the account. A banker does not hold the sums in a bank account on trust for its customer. Instead the relationship between them is that of debtor and creditor. Bank account is right in personam, not right in rem because you are not claiming a right to the hard cash itself. When the customer deposits money in the account it becomes the bank's money, and the bank's obligation to repay an equivalent sum (and any agreed interest) to the customer or the customer's order. Had it been held that the bank was a trustee then the bank would not be entitled to use the sums deposited for lending to other parties because of the rule against trustee's making a profit out of the trust property. Role of bank can be trustee with fiduciary responsibilities, in this situation the benefit you get you can pay for wealth management role as gratuitous thanks. Licence or contract to credit money to bank and they secure it on customers’ behalf. 4 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 The plaintiffs were members of an Aboriginal clan who claimed that the defendant’s mining activities were interfering with their right to perform traditional ceremonies on the land. The plaintiffs’ rights to perform traditional ceremonies on the land were held not to be property. They failed to prove that their relationship to the land was property because they did not have the rights (a) to alienate (transfer) their right to use the land to others and (b) to exclude other aboriginal clans from using the land. Can property exist without those rights? Would a right to prevent others from interfering with the plaintiffs’ use of the land be a sufficient right of exclusion to constitute property? Blackburn J: Right to use/enjoy, right to exclude others, right to alienate, there may be qualifications to these and not all the rights have to exist together. This case would probably have been decided differently after Mabo 1992. Mabo v Queensland (No 2) [1992] HCA 23, 175 CLR 1 The High Court of Australia recognised native title as a form of property. The doctrine of terra nullius, which imported all laws of England to a new land, did not apply in circumstances where there were already inhabitants present – even if those inhabitants had been regarded at the time as "uncivilised". Any indigenous land rights which had not been extinguished by subsequent grants by the Crown continued to exist in Australia. 5 Distribution of Property Underkuffler (1990): “A right can be defined as that which fulfils an individual need or individual interest that is considered to be of sufficient moral importance to justify the generation of duties for others.” Property rights need special justification because they correspond to duties imposed on everyone in society and not just on those who have consented to undertake particular duties to particular right holders. Rare that any property is wholly private, an individual has 100% decision-making power, e.g. subject to planning law and public control, require permission to build on a piece of land you own. Decisions by government can affect. a privately owned building may be listed under the Planning (Listed Buildings and Conservation Areas) Act 1990 s 7 which prevents the owner from doing anything “which would affect its character as a building of special architectural or historic interest, unless the works are authorised”.
Load more

Recommended publications
  • 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]
  • 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]
  • June 17 Land
    LEVEL 6 - UNIT 9 – LAND LAW SUGGESTED ANSWERS – JUNE 2017 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2017 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 The first step to any claim based on adverse possession is that the claimant must prove that they have satisfied three fundamental requirements. As stated in Powell v MacFarlane (1979) and reaffirmed in the House of Lords in Pye v Graham (2002), these are factual possession, an intention to possess the land and the possession must be adverse. Factual possession is effectively exclusive possession (Buckinghamshire County Council v Moran (1990)). The requirement is that the claimant has a sufficient degree of physical possession and control of the land. The level required will depend on the nature and quality of the land in question. The claimant must also have been dealing with the land for his or her own benefit as the paper title owner might have done (Powell v MacFarlane).
    [Show full text]
  • Property Law Cases
    TABLE OF CASES UK Cases ...................................................................................................................................... 2 A B C D E F G H I J K L M N O P Q R S T U V W X-Z US Cases ...................................................................................................................................... 81 A B C D E F G H I J K L M N O P Q R S T U V W X-Z Australian Cases ....................................................................................................................... 168 Canadian Cases .......................................................................................................................... 171 New Zealand Cases ................................................................................................................... 174 1 back to the top TABLE OF UK CASES A A Ketley Ltd v Scott [1981] ICR 241, 130 NLJ 749 Abbey Homesteads Group Ltd v Secretary of State for Transport (1982) 263 EG 983, 264 EG 151, 154, [1982] 2 EGLR 18 (LT) Abbey National Building Society v Cann [1991] 1 AC 56, [1990] 1 All ER 1085 (HL) Abbey National Building Society v Cann [1991] 1 AC 56, [1990] 1 All ER 1085, 1101 (HL) Abernethie v AM and J Kleiman Ltd (1969) 211 EG 405, [1970] 1 QB 10 Abram Steamship Co v Westvill Shipping Co [1923] AC 773, 781 (HL) Ackland v Lutley (1839) 9 Ed & El 879, 894, 112 Eng Rep 1446 Acton v Blundell (1843) 12 M & W 324, 152 Eng Rep 1223 Adagio Properties Ltd v Ansari [1998] 35 EG 86 (CA) Adams and Wade Ltd v Minister of Housing and Local Government
    [Show full text]
  • English Private Law
    ENGLISH PRIVATE LAW ENGLISH PRIVATE LAW second edition Edited by Professor Andrew Burrows St Hugh’s College Oxford 1 1 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Athens Auckland Bangkok Bogotá Buenos Aires Calcutta Cape Town Chennai Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Paris São Paulo Shanghai Singapore Taipei Tokyo Toronto Warsaw with associated companies in Berlin Ibadan Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York First edition published by Oxford University Press 2000 Second edition published by Oxford University Press 2007 © Oxford University Press 2007 The moral rights of the author have been asserted Database right Oxford University Press (maker) Crown copyright material is reproduced with the permission of the Controller of Her Majesty’s Stationery Offi ce All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted
    [Show 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.
    [Show full text]
  • Land Law (LAWW2013) (LAWW2010) (LAWW2011) (M32001) (M32098) (M32099) | University of Nottingham
    10/02/21 Land Law (LAWW2013) (LAWW2010) (LAWW2011) (M32001) (M32098) (M32099) | University of Nottingham Land Law (LAWW2013) (LAWW2010) View Online (LAWW2011) (M32001) (M32098) (M32099) [1] Alexander Hill-Smith 2007. Rights of parking and the ouster principle after Batchelor v Marlow. Conveyancer and Property Lawyer. (2007). [2] Barbara Bogusz Defining the scope of actual occupation under the LRA 2002: some recent judicial clarification. Conveyancer and Property Lawyer. [3] Barbara Bogusz Defining the scope of actual occupation under the LRA 2002: some recent judicial clarification. Conveyancer and Property Lawyer. [4] Bevan, C. 2018. Land law. Oxford University Press. [5] Bright, S. 2000. Leases, exclusive possession and estates. The law quarterly review. 116, (2000), 7–11. [6] Bright, Susan 1993. Uncertainty in Leases - Is It a Vice? Legal Studies. 13, (1993). 1/17 10/02/21 Land Law (LAWW2013) (LAWW2010) (LAWW2011) (M32001) (M32098) (M32099) | University of Nottingham [7] Davis 1998. The Principle of Benefit and Burden. The Cambridge Law Journal. 57, 03 (1998), 522–553. [8] Dixon, M. 2011. To sell or not to sell: that is the question. The irony of the Trusts of Land and Appointment of Trustees Act 1996. The Cambridge Law Journal //bind click to activate export $(’a[rel=export]').click(function(evt){ evt.preventDefault(); document.forms['optionsF orm'].submit(); }); });. 70, 3 (2011). [9] Dixon, Martin 2000. The non-proprietary lease: the rise of the feudal phoenix. The Cambridge Law Journal. 59, 01 (2000), 25–28. [10] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [11] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell.
    [Show full text]
  • Tenant Or Licensee?
    PROPERTY NUTS & BOLTS: Tenant or licensee? Richard Clarke Landmark Chambers 9 May 2019 Tenant, licensee or trespasser • Critical to be clear as to the legal basis of occupation to ensure that the correct means of terminating that occupation is used; • Not simply a matter of checking the terminology used by the parties – ascertaining the basis of occupation is “not… a question of words but of substance” – see Glenwood Lumber Co. Ltd. v. Phillips [1904] A.C. 405 at 408-409; • Whether an agreement is a tenancy or licence is a question of law, not of the parties’ subjective intentions: Mexeld Housing Co-operative Ltd v Berrisford [2012] 1 AC 955 at [17]. Street v Mountford [1985] 1 AC 809 • The House of Lords considered the nature of a tenancy in Street v Mountford; • The hallmarks of a tenancy are: – the grant of exclusive possession; – for a fixed or periodic term certain; – in consideration of a premium or periodical payments; • These are (usually) cumulative requirements; • Grant may be express or inferred, written or oral; • Exceptional cases where an agreement, despite satisfying these criteria, does not amount to a tenancy. Grant of exclusive possession • Exclusive possession is distinct from a right personally to occupy; • E.g. Hotel/lodger – provider cleans room, changes bedding etc.at short notice – no exclusive possession. Grant of exclusive possession • Exclusive possession is secured by the right of the lessee to maintain ejectment and, after their entry, trespass, and the lessee is able to exclude his landlord as well as strangers from the demised premises; • Exclusive possession not inconsistent with the landlord reserving a limited right of entry, for example to view or repair.
    [Show full text]
  • M32001 Land Law | University of Nottingham
    09/27/21 M32001 Land Law | University of Nottingham M32001 Land Law View Online [1] Bright, S. 2000. Leases, exclusive possession and estates. The law quarterly review. 116, (2000), 7–11. [2] Bright, Susan 1993. Uncertainty in Leases - Is It a Vice? Legal Studies. 13, (1993). [3] Davis 1998. The Principle of Benefit and Burden. The Cambridge Law Journal. 57, 03 (1998), 522–553. [4] Dixon, M. 2011. To sell or not to sell: that is the question. The irony of the Trusts of Land and Appointment of Trustees Act 1996. The Cambridge Law Journal //bind click to activate export $(’a[rel=export]').click(function(evt){ evt.preventDefault(); document.forms['optionsF orm'].submit(); }); });. 70, 3 (2011). [5] Dixon, Martin 2000. The non-proprietary lease: the rise of the feudal phoenix. The Cambridge Law Journal. 59, 01 (2000), 25–28. [6] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. 1/15 09/27/21 M32001 Land Law | University of Nottingham [7] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [8] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [9] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [10] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [11] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [12] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [13] Gravells, N.P. 2010. Land law: text and materials. Sweet & Maxwell. [14] Haley 1997. Mortgage Default: Possession, Relief and Judicial Discretion. Legal Studies. 17, (1997).
    [Show full text]