MODERN LAND LAW Sixth Edition Modern Land Law provides a user-friendly yet comprehensive account of this foundation subject. Explaining land law in an understandable and logical fashion, this new edition has been substantially rewritten and revised to take into account developments since the publication of the last edition in 2005. In addition, each chapter has been expanded and updated to include an analysis of the most recent case law including Doherty v. Birmingham City Council and Yeoman’s Row Management v. Cobbe. Written with students in mind, key features of this textbook include: ● a clear introduction to each chapter ● concise and understandable treatment of all the major topics covered on an undergraduate course ● a concluding summary to each chapter ● in-depth coverage of recent significant developments ● increased use of tables and diagrams to aid understanding of complicated topics. Modern Land Law provides a readable, clear and thorough exposition of the principles of land law. Comprehensive yet succinct it is the perfect text for an undergraduate course. Dr Martin Dixon is Reader in the Law of Real Property at Cambridge University and a Fellow of Queens' College, Cambridge. He is visiting Professor of Law at City University, London. He examines and writes exten- sively on property law and is the editor of The Conveyancer and Property Lawyer, the leading property law journal. He is also an author of Ruoff and Roper: The Law of Registered Conveyancing, the authoritative text on the modern land registration. MODERN LAND LAW Sixth Edition Dr Martin Dixon Sixth edition first published 2009 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY10016 This edition published in the Taylor & Francis e-Library, 2009. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business © 2009 Martin Dixon First published by Cavendish Publishing as Principles in Land Law in 1994 First edition 1994 Second edition 1996 Third edition 1999 Fourth edition 2002 Fifth edition 2005 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. 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 A catalog record for this title has been requested. ISBN 0-203-86794-7 Master e-book ISBN ISBN 13: 978-0-415-45844-3 (pbk) ISBN 10: 0-415-45844-7 (pbk) PREFACE Approaching land law for the first time can seem a daunting prospect. A major aim of this text is to dispel fears and to explain land law in an under- standable 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. However, the text is designed to explode the myths and mys- teries 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 mis- placed, 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 are as challenging and as topical as any that other law courses have to offer. Land law is also a subject steeped in history. Many of the concepts and much of the language have their origin in centuries old legal tradition. However, the historical dimension of land law – which in its own right is a fascinating topic for those with a passion for social and legal history – should not blind us to the reality that we live in the twenty-first century and that the everyday principles of land law have moved on. The great reforms of 1922–25 that gave birth to the reforming property law legislation of 1925 no longer seem radical and unfamiliar, and the entry into force of the Land Registration Act 2002 on October 13 2003 heralded a new era. Of course, what we have now owes much to what we once had, but land law is a modern subject and our system is likely to be the first in the world that moves away from paper transactions in favour of electronic dealings. That said, I have resisted the temptation, which was never very great, to present land law as some kind of trendy, modernist social construct. The need for modern teaching of a modern subject does not mean the abandonment of a method of analysis that has stood the test of time. This is a book about law, based on our traditional understanding of the foundations of property law, albeit that concepts, prin- ciples and rules which are of purely historical interest have been omitted. Land law is like a jigsaw and this book aims to explain the rules and prin- ciples 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. Many pieces are needed before the jigsaw shows a picture, so the text aims at an accumulation of under- standing rather than dropping the reader in at the deep end. There has been important case law since the previous edition and the Land Registration Act 2002 has been in force for five years. The House of Lords has been active – Stack v. Dowden, Moncrieff v. Jamieson, London Diocesan Board of Finance v. Avonridge and Kay v. Lambeth LBC being just a sample of the cases that have developed the law and had wide social and economic impact. In consequence, v Preface much has been rewritten and expanded. My aim has remained, however, to help the reader swim with the subject, rather than watch them drown in the detail. I am pleased to be working with Routledge-Cavendish whose gentle encouragement ensures that the book remains topical and up to date. I am genuinely grateful to many current and former students who continue to raise questions about land law that require thought and reflection. They have done much to sharpen my thoughts and to save me (I hope) from serious error. My wife and children no longer even pretend to have an interest in land law and they remain steadfast in their opposition to my attempts to explain to them how elegant and sophisticated the law of real property actually is. I have noticed a tendency for my study door to be locked from the outside. Martin Dixon Queens’ College, Cambridge July 2008 vi CONTENTS Preface v Table of Cases xix Table of Statutes xxxvii Tables of Statuatory Instruments and European Legislation xliii Table of Acronyms xlv CHAPTER 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 6 1.2.1 Estates in land 6 1.2.2 Interests in land 9 1.3 The legal or equitable quality of proprietary rights 10 1.3.1 The origins of the distinction between legal and equitable rights 10 1.3.2 Making the distinction between legal and equitable rights today 11 1.3.3 Section 1 of the Law of Property Act 1925: is the right capable of being either legal or equitable? 11 1.3.4 The manner of creation of the right 12 1.3.5 The proposed system of electronic conveyancing and the distinction between legal and equitable property rights 16 1.3.6 The division of ownership and the 'trust' 16 1.4 The consequences of the distinction between legal and equitable property rights 18 1.4.1 Legal property rights before the 1925 legislation 18 1.4.2 Equitable property rights before the 1925 legislation 19 1.5 The 1925 property legislation and the Land Registration Act 2002 20 1.5.1 The Law of Property Act 1925 20 1.5.2 The Settled Land Act 1925 20 1.5.3 The Land Registration Act 1925 and the Land Registration Act 2002 20 1.5.4 The Land Charges Act 1972 21 1.6 The distinction between registered and unregistered land 21 1.6.1 Registered land 22 1.6.2 Unregistered land 23 Summary 27 CHAPTER 2: REGISTERED LAND 31 2.1 Introduction 31 2.2 The basic concept of title registration 33 2.3 The nature and purpose of the system of registered land 35 2.4 The three fundamental operating principles of registered land 38 2.4.1 The mirror principle 38 2.4.2 The curtain principle 40 2.4.3 The insurance principle 41 vii Contents 2.5 An overview of the registered land system under the Land Registration Act 2002 42 2.5.1 Rejection of the doctrine of notice 45 2.5.2 Registrable estates under the LRA 2002 46 2.5.3 Registered charges 47 2.5.4 Unregistered interests which override ('overriding interests') 48 2.5.5 Interests protected by registration 49 2.6 The operation of registered land: titles 51 2.6.1 Absolute title 52 2.6.2 Good leasehold title 53 2.6.3 Possessory title 53 2.6.4 Qualified title 54 2.6.5 The new owner, purchaser or mortgagee under a registered disposition 55 2.6.6 The third party with interests in the transferred land 56 2.7 The operation of registered land: unregistered interests which override 56 2.7.1 Strategies of the LRA