Definition and Rights

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'Land' is defined in the Law of Property Act 1925, section 205(1)(ix): "Land includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments".

This defintion is confusing, but essentially means that land includes both property you can touch (e.g. your house, some soil, etc.) and other property you cannot physically touch (e.g. the right to walk across your neighbour's driveway or the right to take something from your neighbour's land).

Land law rights attach to the land itself so that any person who comes into ownership or possession of the land may be entitled to enjoy the benefits that now come with the land or may be subject to the burdens imposed on the land.

Freehold and leasehold

It is only posssible to own 'an estate in land' (i.e. if you buy a house you do not actually own the land, but own an estate in land. This is because all land is vested in the crown).

  • Minister of State for the Army v Dalziel (1944): "no subject can own lands allodially – he can own only an estate in law".

There are two types of legal estate in land:

  1. Estate in fee simple absolute in possession (i.e. a "freehold");
  2. Term of years absolute (i.e. a "leasehold") (Law of Property Act 1925, section 1(1)(a)).

In other words, you can only own the freehold orleasehold of property.

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Personal and proprietary rights

There are two types of rights you must be aware of in land law:

  1. Personal rights (i.e. rights in personam): These are rights that only affect the parties that originally created the right. For example, if A gave permission to B to lawfully use his property for something (i.e. a licence).
  2. Proprietary rights (i.e. rights in rem or proprietary interests): These are rights that are capable of affecting third parties; not just the people who originally agreed to it.

Proprietary rights/interests (rights in rem) can be divided into legal rights in rem (legal interests) and equitable rights in rem (equitable interests):

  1. Legal right in rem: the only proprietary rights/interests capable of being legal are the fee simple, lease (Law of Property Act 1925, section 1(1)(a)), easements, rentcharge, and the mortgage (Law of Property Act 1925, section 1(2));
  2. Equitable right in rem: all othere interests are necessarily equitable (Law of Property Act 1925, section 1(3)). For example, the restrictive covenant, estoppel, and beneficial interests under a trust are necessarily equitable.

This is probably quite confusing at this stage, however everything is explained in greater depth within the relevant topic notes.

Legal and equitable proprietary rights/interests

A legal proprietary right (e.g. a mortgage) can only achieve legal status if created in a certain way: a legal proprietary right must be created by a valid deed (Law of Property (Miscellaneous Provisions) Act 1989, section 1) (Law of Property Act, section 52(1)) and be registered under the registered estate regime (Land Registration Act 2002, section 27(1)).

If the above formality to create a legal proprietary right is not complied with, the right may still take effect in equity in two ways:

  1. Pre-conferment contract: if you contract with someone to create an easements (i.e. a proprietary right that is capable of being legal) at some future date, but have not followed the requirements above to give the easements legal status, it may still take effect in equity. This follows the equitale maxim, 'equity looks as done as ought to be done'.
  2. Where you fail to make a legal interest: if you attempt to comply with the formalities to make your proprietary right achieve legal status, but fail, it may be given effect in equity. For example, if you fail to create a valid deed in the creation of your legal easements, it will be seen as a contract to provide a legal easements and, thus, given effect in equity in the same way as a pre-conferment contract (Parker v Taswell (1858)).

Note, both of these routes MUST comply with Law of Property (Miscellaneous Provisions) Act 1989, section 2 i.e. made by signed writing. If there is no signed writing NO right (i.e. neither legal or equitable) has been given at all.

Equity formalities

As mentioned above, there are formalities in the creation of a legal proprietary right in rem. However, there are also formalities in the creation of an equitable proprietary right in rem.

In general, equitable interests must be created by signed writing (Law of Property Act 1925, section 53(1)(a)).

It should be mentioned that it is not expected you understand all of this at this stage. In fact, this is a necessarily complicated overview of some fundamental concepts of land law, all of which will make sense as you go through the topic notes.

*Exam tip*

In land law you must ask yourself two questions when deciding whether a right is equitable:

  • Is the right in the list of legal interests under the Law of Property Act 1925, section 1(2)(a)? → if it is not, the right must be equitable.
  • If the right is in the list you must ask whether or not the right was created by deed → if it is not, it must be equitable (which requires the right to be created by signed writing instead).

If created by neither deed or signed writing it is neither legal or equitable.

Some other helpful legal resources on land law:

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