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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. fl ashcards, all designed so that you can test yourself on topics covered in this book. The book also provides: There are also live weblinks and regular legal updates to help you impress lecturers and • Introductory chapters that explain what land law examiners with your knowledge of the latest is and why it is important, the difference between developments in land law. land law and other forms of property law, and the Worried about getting to grips with cases? increasingly important relationship between land law Case Navigator offers unique online support and human rights. that helps you improve your case reading and SECOND • A fully cross-referenced glossary with clear defi nitions analysis skills in land law. EDITION of the technical and often archaic terms encountered CASE in land law. • Fully supported by mylawchamber, with useful N R A O Roger J. Smith online resources for assessment and learning support V I G A T POWERED BY at www.mylawchamber.co.uk/smithintro. The LexisNexis element of Case Navigator is only available to those who currently subscribe to LexisNexis Butterworths services. Roger J. Smith teaches law at Magdalen College, Lecturers: Register online for access to a University of Oxford. He is also the author of two very testbank of multiple-choice questions that can be customised and used to assess students’ successful in-depth treatments of the subject: Property progress. Law, sixth edition, and Property Law: Cases and Materials, fourth edition, both published by Longman. www.pearson-books.com CVR_SMIT2607_02_SE_CVR.indd 1 8/2/10 10:45:32 A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page i Introduction to Land Law A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page ii The perfect companion to use alongside your textbook. ISBN: 9781405873468 Includes all the cases and materials you are likely to need for your course. Available at all good bookshops or order online at: www.pearsoned.co.uk/law A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page iii 2nd2nd Introduction to editionedition Land Law Roger J. Smith Magdalen College, Oxford A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page iv Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk First published 2007 Second edition published 2010 © Pearson Education Limited 2007, 2010 The right of Roger J. Smith to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. 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, electronic, mechanical, photocopying, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Law Commission Reports are reproduced under the terms of the Click-Use Licence. ISBN: 978-1-4082-2260-7 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Smith, Roger J. (Roger John), 1948– Introduction to land law / Roger J. Smith. – 2nd ed. p. cm. ISBN 978-1-4082-2260-7 (pbk.) 1. Real property–England. I. Title. KD829.S627 2010 346.4204′3–dc22 2009050100 10987654321 14 13 12 11 10 Typeset in 9.5/13 pt Stone Sans by 35. Printed and bound in Great Britain by Henry Ling Ltd, Dorchester, Dorset. The publisher’s policy is to use paper manufactured from sustainable forests. A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page v Brief contents Preface to second edition xiv Acknowledgement xvi Table of cases xvii Table of legislation xxiii Part 1 Introduction to land law 1 1 Introducing land law 3 2 Trusts and equitable interests 11 3 Legislative reform: 1925 to 2002 15 4 Land and other property 22 5 Human rights 26 Part 2 Acquiring interests and binding purchasers 33 6 Adverse possession and fixtures 35 7 Transfer and creation of interests in land 50 8 Estoppel 71 9 Ownership of the family home 89 10 Priorities 108 Part 3 Rights to enjoy land 131 11 Successive and concurrent ownership 133 12 Trusts of land 148 13 Leases: types and requirements 172 14 Leases: obligations and remedies 192 Part 4 Other interests in land 219 15 Licences 221 16 Easements 234 17 Covenants 256 18 Mortgages 273 Glossary 294 Index 299 v A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page vi A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page vii Contents Preface to second edition xiv Acknowledgement xvi Table of cases xvii Table of legislation xxiii Part 1 INTRODUCTION TO LAND LAW 1 1 Introducing land law 3 What is land law? 3 What issues arise in land law? 4 Interests in land 5 Splitting ownership 6 Other interests in land 7 Why have a list of interests in land? 9 2 Trusts and equitable interests 11 The trust 11 Other equitable interests: remedies 12 Equitable interests in the modern law 13 3 Legislative reform: 1925 to 2002 15 A strategy for estates 15 Freehold estates 16 Leasehold estates 17 Registration of title 17 A strategy for interests other than estates 18 An interim solution: land charges legislation 18 The modern solution: registration of title 18 Commonhold: a new estate? 19 Conclusions 21 4 Land and other property 22 The range of proprietary interests recognised 22 The significance of possession 23 Formalities 23 vii A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page viii Contents Registration 23 Land as a home 24 Land and the 1925 legislation 24 Conclusions 25 5 Human rights 26 Convention rights 26 Enforcement of Convention rights 28 Human rights in the enforcement of property rights 29 Assessing human rights in land law 30 Part 2 ACQUIRING INTERESTS AND BINDING PURCHASERS 33 6 Adverse possession and fixtures 35 Nature and importance 35 Main issues and rules: adverse possession 35 Introduction 35 Adverse possession under the Land Registration Act 2002 36 When is there adverse possession? 38 Critical and controversial issues: adverse possession 43 Justifications for adverse possession 43 The human rights challenge 44 Is adverse possession justified today? 45 Main issues and rules: fixtures 45 The significance of fixtures 46 When is there a fixture? 47 Rights to remove fixtures 48 Assessing the law on fixtures 49 7 Transfer and creation of interests in land 50 Nature and importance 50 The importance of formalities 50 Main issues and rules 51 Transfers of land 51 Creating interests in land 55 Trusts 56 Critical and controversial issues 61 The reasons for formality rules 61 Electronic conveyancing 64 8 Estoppel 71 Nature and importance 71 viii A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page ix Contents Main issues and rules 73 When will estoppel arise? 73 The remedy 77 Estoppel as a proprietary claim 77 Benefit and burden 79 Critical and controversial issues 80 Enforcing promises 80 Remedies 85 Conclusions 87 9 Ownership of the family home 89 Nature and importance 89 Main issues and rules 90 Express declarations of trust 90 Transfer into joint names 91 Transfer into a single name 92 Quantifying the shares 97 Critical and controversial issues 100 The impact of Stack in single name transfers 100 Reform 102 Estoppel and constructive trusts 103 10 Priorities 108 Nature and importance 108 Main issues and rules 109 Legal and equitable priority rules 109 The need for reform 110 Land charges 111 Land registration 112 Critical and controversial issues 122 Purchasers with actual notice 122 Actual occupation 124 Part 3 RIGHTS TO ENJOY LAND 131 11 Successive and concurrent ownership 133 Nature and importance 133 Main issues and rules: successive interests 134 What interests are recognised?
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