Principles of Land Law Fourth Edition Cavendish Publishing Limited London • Sydney EDITORIAL ADVISORY BOARD PRINCIPLES OF LAW SERIES Professor Paul Dobson Visiting Professor at Anglia Polytechnic University Professor Nigel Gravells Professor of English Law, Nottingham University Professor Phillip Kenny Professor and Head of the Law School, Northumbria University Professor Richard Kidner Professor and Head of the Law Department, University of Wales, Aberystwyth In order to ensure that the material presented by each title maintains the necessary balance between thoroughness in content and accessibility in arrangement, each title in the series has been read and approved by an independent specialist under the aegis of the Editorial Board. The Editorial Board oversees the development of the series as a whole, ensuring a conformity in all these vital aspects. Principles of Land Law Fourth Edition Martin Dixon, MA Fellow and University Senior Lecturer in Law Queens’ College, University of Cambridge Cavendish Publishing Limited London • Sydney Fourth edition first published in Great Britain 2002 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com © Dixon, Martin 2002 First edition 1994 Second edition 1996 Third edition 1999 Fourth edition 2002 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, scanning or otherwise, except under the terms of the Copyrights Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the prior permission in writing of the publisher. Dixon, Martin Principles of land law—4th ed—(Principles of law series) 1 Land tenure—Law and legislation—England 2 Land tenure—Law and legislation—Wales I Title 346.4'2'043 ISBN 1 85941 472 9 Printed and bound in Great Britain To Cornflake PREFACE Approaching land law can seem a daunting prospect. One major aim of this text is to dispel fears and to explain land law in an understandable and logical way. No attempt has been made to minimise the complexities of the subject simply to make it attractive or readable—for that benefits no one. Yet, the text is designed to explode the myths and mysteries of land law and substitute instead a picture that is both detailed and comprehensible. There is no denying that land law is different from other subjects, not least because its language is at first unfamiliar. But different does not mean difficult. Similarly, there is a common belief that land law is boring, not as sexy or apparently relevant as other legal disciplines! This too is misplaced, for land law remains at the heart of the legal system and is the vehicle for so much that concerns our everyday lives, both at home and work. Seen in context, the issues raised in land law can be as challenging and as relevant as any that any other law course has to offer. Land law is also a subject based on principle: so Principles of Land Law is both a convenient and accurate title. The subject is like a jigsaw and this book aims to explain the principles and how they fit together to form a coherent whole. The arrangement of the chapters is intended to facilitate the growth of a steady understanding of each topic and its place within the jigsaw. There has been much important case law in recent years and important legislation reforming some of the core concepts in land law is now in place. The Land Registration Act 2002 received Royal Assent on 26 February 2002 and although it is not yet in force (that being a gradual process over the next five years), the Act changes the way we think and analyse modern land law. As it is, the subject has developed rapidly to meet the challenges of modern society and this has been reflected in the book. Necessarily, while the author collects the criticisms that might be cast his or her way, there are many concerned with a book that deserve a share of any credit. Cavendish Publishing have been especially forgiving while the text was in preparation although I plead the Land Registration Act 2002. My wife has now given up pretending to be interested in land law but still ensures that I remain as sane as I ever was. My own students continue to be free with their advice about what they want from a text and I regard them as my most important audience. Martin Dixon Queens’ College, Cambridge April 2002 vii CONTENTS Preface vii Table of Cases xxv Table of Statutes xliii Table of Abbreviations xlix 1 AN INTRODUCTION TO MODERN LAND LAW 1 1.1 THE NATURE AND SCOPE OF THE LAW OF REAL PROPERTY 2 1.2 TYPES OF PROPRIETARY RIGHTS 4 1.2.1 Estates in land 4 1.2.2 Interests in land 7 1.3 THE LEGAL OR EQUITABLE QUALITY OF PROPRIETARY RIGHTS 7 1.3.1 The origins of the distinction between legal and equitable rights 8 1.3.2 Making the distinction between legal and equitable rights today 8 1.3.3 Section 1 of the Law of Property Act 1925: is the right capable of being either legal or equitable? 9 1.3.4 The manner of creation of the right 9 1.3.5 The division of ownership and the ‘trust’ 12 1.4 THE CONSEQUENCES OF THE LEGAL/EQUITABLE DISTINCTION 13 1.4.1 Legal status before the 1925 legislation 13 1.4.2 Equitable status before the 1925 legislation 13 1.5 THE 1925 PROPERTY LEGISLATION14 1.5.1 The Law of Property Act 1925 15 1.5.2 The Settled Land Act 1925 15 1.5.3 The Land Registration Act 1925 15 1.5.4 The Land Charges Act 1972 16 ix Contents 1.6 THE DISTINCTION BETWEEN REGISTERED AND UNREGISTERED LAND 16 1.6.1 Registered land 16 1.6.2 Unregistered land 17 1.7 A DIAGRAMMATIC REPRESENTATION OF THE 1925 PROPERTY LEGISLATION19 SUMMARY OF CHAPTER 1 21 2 REGISTERED LAND 25 2.1 INTRODUCTION 25 2.2 THE NATURE AND PURPOSE OF THE SYSTEM OF REGISTERED LAND 27 2.2.1 Under the Land Registration Act 2002 29 2.3 THE SO CALLED ‘THREE PRINCIPLES’ OF REGISTERED LAND 30 2.3.1 The mirror principle 30 2.3.2 The curtain principle 31 2.3.3 The insurance principle 32 2.4 AN OVERVIEW OF THE REGISTERED LAND SYSTEM UNDER THE LAND REGISTRATION ACT 1925 33 2.4.1 Registrable interests (including titles) under the Land Registration Act 1925 34 2.4.2 Registered charges 35 2.4.3 Overriding interests 36 2.4.4 Minor interests 37 2.5 THE OPERATION OF REGISTERED LAND: TITLES 38 2.5.1 Absolute title 39 2.5.2 Good leasehold title 40 2.5.3 Possessory title 40 2.5.4 Qualified title 41 2.5.5 The new owner or mortgagee (the purchaser) 41 2.5.6 The third party 41 x Contents 2.6 THE OPERATION OF REGISTERED LAND: OVERRIDING INTERESTS 43 2.6.1 Easements and profits: s 70(1)(a) of the Land Registration Act 1925 44 2.6.2 Rights in the nature of public or residual feudal obligations: s 70(1)(b), (c), (d), (e) of the Land Registration Act 1925 46 2.6.3 Adverse possession: s 70(1)(f) of the Land Registration Act 1925 46 2.6.4 Rights and actual occupation: s 70(1)(g) of the Land Registration Act 1925 47 2.6.5 Legal leases for 21 years or less: s 70(1)(k) of the Land Registration Act 1925 52 2.6.6 Further overriding interests under s 70(1) of the Land Registration Act 1925 52 2.6.7 The bindingness of overriding interests under the Land Registration Act 1925 53 2.7 THE OPERATION OF REGISTERED LAND: MINOR INTERESTS UNDER THE LAND REGISTRATION ACT 1925 60 2.7.1 Restriction: s 58 of the Land Registration Act 1925 61 2.7.2 Inhibition: s 57 of the Land Registration Act 1925 61 2.7.3 Notice: s 49 of the Land Registration Act 1925 62 2.7.4 Caution: ss 54, 55, 56 of the Land Registration Act 1925 62 2.7.5 Enforcing minor interests 63 2.8 THE OPERATION OF REGISTERED LAND: OVERREACHING 68 2.8.1 The right must be capable of being overreached 69 2.8.2 The statutory conditions for overreaching must be fulfilled 69 2.8.3 The consequences of failing to overreach 71 2.9 RECTIFICATION OF THE REGISTER 72 xi Contents 2.10 INDEMNITY UNDER THE LAND REGISTRATION ACT 1925 75 2.11 AN OVERVIEW OF THE LAND REGISTRATION ACT 2002 78 SUMMARY OF CHAPTER 2 81 3 UNREGISTERED LAND 85 3.1 INTRODUCTION TO THE SYSTEM OF UNREGISTERED CONVEYANCING: UNREGISTERED LAND 86 3.1.1 What is unregistered land? 86 3.2 AN OVERVIEW OF UNREGISTERED LAND 86 3.2.1 Estates in unregistered land 86 3.2.2 Interests in unregistered land: rights over another person’s estate 87 3.2.3 Legal rights 87 3.2.4 Equitable rights which are registrable under the Land Charges Act 1972 88 3.2.5 Equitable rights which are not registrable under the Land Charges Act 1972 because they are subject to overreaching 88 3.2.6 Equitable rights which are neither overreachable nor registrable under the Land Charges Act 1972 88 3.3 TITLES IN UNREGISTERED LAND 89 3.4 THIRD PARTY RIGHTS IN UNREGISTERED LAND 90 3.5 THE PURCHASER OF UNREGISTERED LAND AND THE PROTECTION OF LEGAL RIGHTS 92 3.6 THE PURCHASER OF UNREGISTERED LAND AND THE PROTECTION OF EQUITABLE RIGHTS: THE LAND CHARGES ACT 1972 93 3.6.1 The classes of registrable charge under the Land Charges Act 1972 95 3.6.2 The effect of registering a land charge 98 3.6.3 The consequences of failing to register a registrable land charge in general 100 xii Contents 3.6.4 The voidness rule 101 3.6.5 Other registers 103 3.7 OVERREACHABLE RIGHTS 104 3.8 A RESIDUAL CLASS OF EQUITABLE INTERESTS 106 3.9 INHERENT PROBLEMS IN THE SYSTEM OF UNREGISTERED LAND 108 3.10 A COMPARISON WITH REGISTERED LAND 109 SUMMARY OF CHAPTER 3 111 4 CO-OWNERSHIP 115 4.1 THE NATURE AND TYPES