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Introduction What Is Land?

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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. (3) All other estates, interests, and charges in or over land take effect as equitable interests. LPA 1925, s2: - Conveyances to be by deed - (1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed. (2) This section does not apply to— (a) assents by a personal representative; (b) disclaimers made in accordance with [sections 178 to 180 or sections 315 to 319 of the Insolvency Act 1986], or not required to be evidenced in writing; (c) surrenders by operation of law, including surrenders which may, by law, be effected without writing; (d) leases or tenancies or other assurances not required by law to be made in writing; (e) receipts [other than those falling within section 115 below]; (f) vesting orders of the court or other competent authority; (g) conveyances taking effect by operation of law. 1 LPA 1925, s53: - instruments required to be in writing - (1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol— (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law; (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will; (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will. - (2) This section does not affect the creation or operation of resulting, implied or constructive trusts. Law of Property (Miscellaneous Provisions) Act 1989, s 2: - an instument shall not be a deed unless - (a) it makes it clear on its face that it is intended to be a deed by 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 be executed or signed as a deed or otherwise); and (b) it is validly executed as a deed by that person or, as the case may be, one or more of those parties. Settled Land Act 1925: - designed to regulate the creation and operation of successive interests in land The Land Registration Act 1925/2002 - creates a system whereby title to land estates and other rights are recorded - records the land, who owns it, what type of right Land Charges Act 1972: - establishes a system to regulate transfer of land - designed to bring certainty to dealings - deals with unregistered land which is proved by deeds and documentation. Types of Proprietary right: - Estates in Land: an estate confers a right to control and use land. When people say they own land they mean they hold ‘the fee simple absolute in possession’. A fee simple/freehold is the righ to use and enjoy the land for the duration of the life of the grantee and that of his heirs and successors. - Leasehold estate: right to use and enjoy land for a stated period of time. - Fee tail: an interest in another persons land. An interest permitting its owner the use of land for the duration of their lifetime and theur lineal descendants. - The life interest: gives the holder the right to enjoy the land for the duration of their lifetime. On death the life interest comes to an end and the land reverts to the superior estate owner. Legal or equitable properietary rights. - Legal rights: provided a property right falls within s1 of the LPA it will be legal if it is created with the proper formality; it must origionate in a deed. - Equtiable rights: a right may be equitable if: 1. it is excluded form the definition of a legal estate or interest found in the LPA. Such rights can only ever be legal as they cannot be equitable. 2 2. despite falling within s1 no deed may have been used where such is required, 3. despite being within s1 and the use of a deed registration may not have ocurred where required. - A right will be equitable is it is created by a written contract or instrument within s2 LPA 1989 or s53 LPA 1925. - The proposed system of electtronic conveyancing will make the distinction between legal and equitable rights largely redundant. The right must be enetered electronically or it won’t exist at all. Ø Consequence of the distinction between legal and equitable: - The effect of the right on a third party depends on whether it is legal or equitable. - The distinction is becoming less important, the Land registration Act 1925 means that it is more about the interpretation of the statute than the nature of the right these days. - Pre 1925: o Legal properietary rights bound every person who owned land over which the right existed o Equitable properietary rights bound every transferee of the land ecept a bona fide purchaser for value without notice. Distinction between registered and unregistered land: - Registered land is governed by the LPA 1925, Common Law and LRA 2002 - Unregistered land is governed by LPA 1925, Common Law and LCA 1972 - Unregistered land is dissapearing as it is all becoming regstered. Registered: - Title is registered in a register - Titles are given a number and the details of the owner are registered - Owenership is guarenteed by the state if the owner is registered - It means that when buying you know that the title has been fully investigated and approved. - ‘registered charge’ – legal mortgage which is registered. - ‘unregistered interests which override’ – overriding interests which are automatically binding on any transferee or occupier without the need for any registration - ‘protectable registered interest’ – will only bind a purchaser if they are registered against the title they affect. Registered by notice. Unregistered: - land to which the title is not registered - title is located in deeds instead - ‘legal rights bind the whole world’ - equitable rights in unregistered land fall into 3 categories: 1. most are land charges under LCA 1972. Must be registeered against the owner of the land over which they take affect in order to bind purchaser. 2. A number of equitable rights that aren’t land charges can’t be registered under the LCA 1972 and their effectiveness is decided by the old doctrine of notice 3. Rights not under the LCA and not under doctrine of notice are overreachable rights – they are equitable rights of a special nature as they are capable of easy quantification in money. May be overeached and so not binding on a new purchaser 3 Concepts in Land Law – Public Law aspects: - Human rights should not be infringed by claims of economic rights. - Penalver and Katyal: argue it is good to break the law regarding property. Greensborough Protests led – break of property law that led to the Civil Rights Movement. Digital Pirates make for better intellectual property law. squatters demonstrate a criminal under use of property. - Public law interests mould land law. Article 1 of the First Protocol, European Convention on Human Rights: - ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ - Companies have the same rights as individuals. Not a right to property but rather a rigts to peaceful enjoyment of possessions.
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