English land law
Encyclopedia
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. Because of its heavy historical and social significance, land is a major part of the wider English property law
English property law
English property law refers to the law of acquisition, sharing and protection of wealth in England and Wales. Property law can refer to many things, and covers many areas. Property in land is the domain of the law of real property. The law of personal property is particularly important for...
.
The principal rules of land law derive from the common law, equitable principle, the Law of Property Act 1925
Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
, the Land Registration Act 2002
Land Registration Act 2002
The Land Registration Act 2002 is an Act of the Parliament of the United Kingdom which repealed and replaced previous legislation governing land registration, in particular the Land Registration Act 1925, which governed an earlier, though similar, system...
, the Land Charges Act 1972
Land Charges Act 1972
The Land Charges Act 1972 is a UK Act of Parliament that updates the system for registering charges on unregistered land in England and Wales. It has largely been repealed, and updated in the Land Charges Act 1925.-Background:...
, the Trusts of Land and Appointment of Trustees Act 1996
Trusts of Land and Appointment of Trustees Act 1996
The Trusts of Land and Appointment of Trustees Act 1996 is an Act of Parliament of the United Kingdom, which altered the law in relation to trusts of land in England, Wales, Scotland and Northern Ireland.-Background:...
, and the Settled Land Act 1925.
History
- Statute of Quia EmptoresQuia EmptoresQuia Emptores of 1290 was a statute passed by Edward I of England that prevented tenants from alienating their lands to others by subinfeudation, instead requiring all tenants wishing to alienate their land to do so by substitution...
1290
- R v Earl of Northumberland (1568), known as the Case of mines
- Earl of Oxford’s case (1615) 21 ER 485
- Real Property Limitation Act 1833
- Land Registration Act 1862
- Married Women's Property Act 1882Married Women's Property Act 1882The Married Women's Property Act 1882 was an Act of the Parliament of the United Kingdom that significantly altered English law regarding the property rights granted to married women, allowing them to own and control their own property....
, Settled Land Act 1882
- Land Charges Act 1925, Land Registration Act 1925Land Registration Act 1925The Land Registration Act 1925 was a act of Parliament in the United Kingdom that codified and extended the system of land registration in England and Wales...
, Settled Land Act 1925, Trustee Act 1925 and Law of Property Act 1925Law of Property Act 1925The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
Definition
The Law of Property Act 1925Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
, s. 205(1)(ix) states:
- "Land" includes land of any tenure, 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 hereditamentHereditamentIn law, a hereditament is any kind of property that can be inherited.Hereditaments are divided into corporeal and incorporeal...
s; also a manor, advowsonAdvowsonAdvowson is the right in English law of a patron to present or appoint a nominee to a vacant ecclesiastical benefice or church living, a process known as presentation. In effect this means the right to nominate a person to hold a church office in a parish...
, and a rent and other incorporeal hereditaments, and an easementEasementAn easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
, right, privilege or benefit in, over, or derived from land..."
The Act goes on to define "mines and minerals" as "any strate or seam of minerals or substances in or under any land, and powers of working and getting the same". It goes on further to define a "hereditament" as "any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir".
The third dimension
The legal maxim is cuius est solum eius est usque ad coelum et ad inferosCuius est solum eius est usque ad coelum et ad inferos
Cuius est solum, eius est usque ad coelum et ad inferos often appearing in the shorter form Cuius est solum eius est usque ad coelum, omitting et ad inferos "and to hell", is a principle of property law, stating that property holders have rights not only to the plot...
, which is Latin for "he who owns the land owns everything up to the heavens and down to the depths."
Since the 13th century this has been complicated by flying freehold
Flying freehold
Flying freehold is an English legal term to describe a freehold which overhangs or underlies another freehold. Common cases include a room situated above a shared passageway in a semi-detached house, or a balcony which extends over a neighbouring property....
s, the right of aircraft to fly over a property (Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479), the Crown's claim on certain resources and mineral rights (Case of Mines
Case of Mines
The Case of Mines or R v Earl of Northumberland was decided in 1568. Twelve judges decided authoritatively “that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative, with liberty to dig and carry...
(1568) 1 Plowd 210, Coal Industry Act 1994, Petroleum Act 1998) and treasure (Treasure Act 1996
Treasure Act 1996
The Treasure Act of 1996 is an Act of Parliament designed to deal with finds of treasure in England, Wales and Northern Ireland; it does not apply in Scotland. It legally obliges finders of objects which constitute a legally defined term of treasure to report their find to their local coroner...
). Nevertheless, cases such as Kelsen v. Imperial Tobacco Co. Ltd. [1957] 2 QB 334 and Laiquat v. Majid [2005] EWHC 1305 illustrate that the courts generally support the freeholder's right to control things that overhang or underlie the ground he holds.
Additions to the land
The legal maxim is quicquid plantatur solo, solo ceditQuicquid plantatur solo, solo cedit
Quicquid plantatur solo, solo cedit is a Legal Latin principle related to fixtures. The legal principle means that something that is or becomes affixed to the land becomes part of the land; therefore, title to the fixture is a part of and passes with title to the land....
, which is Latin for "that which is fixed to the land becomes part of it".
Holland v. Hodgson [1872] LR 7 CP 328 explored this. The context was the question of whether looms installed in a factory formed part of the land. Blackburn J said that an object resting on the ground and "attached" to it only by its weight will not normally be part of the land, but it is relevant to ask what was intended. So, for example, a pile of stones in a field is not part of the land, but if the stones are arranged into a dry stone wall then the wall has become a part of it.
In Botham v. TSB Plc [1997] 73 P & CR D 1, it was decided at appeal that things easily removed, such as curtains and carpets, are not part of the land, but things not easily removed, such as taps and plugs, are.
In Chelsea Yacht and Boat Club v Pope
Chelsea Yacht and Boat Club v Pope
Chelsea Yacht and Boat Club v Pope [2001] 2 All ER 409 is an English legal case. The case established that a houseboat, even if permanently moored, does not form part of the land as the degree of annexation is insufficient.....
[2001] 2 All ER 409, it was held that a houseboat does not form part of the land because it is insufficiently fixed.
Water
In the law of England and Wales, land may lie under water, but the water does not necessarily form part of the land. The Land Registration Act 2002Land Registration Act 2002
The Land Registration Act 2002 is an Act of the Parliament of the United Kingdom which repealed and replaced previous legislation governing land registration, in particular the Land Registration Act 1925, which governed an earlier, though similar, system...
, s.132 (1)(b) says that "land" includes land covered with water. For most practical purposes, water may be used by the person owning the land on which it is, but there are restrictions on some activities, such as large-scale abstractions of water or activities which may pollute it (see, for example, the Water Resources Act 1991
Water Resources Act 1991
The Water Resources Act 1991 is an Act of the Parliament of the United Kingdom that regulates water resources, water quality and pollution, and flood defence. Part II of the Act provides the general structure for the management of water resources. Part III then explains the standards expected for...
). Tidal waters are treated differently. They generally belong to the Crown or to a local authority, and the public has the right to pass over tidal waters and to fish in them.
Land ownership
Technically, only the monarch can own land and therefore all land in England and Wales belongs to the Crown. What subject can own is an estate. This is held via a system called tenureLand tenure in England
Land tenure in EnglandEven before the Norman Conquest, there was a strong tradition of landholding in Anglo-Saxon law. When William the Conqueror asserted sovereignty over England in 1066, he confiscated the property of the recalcitrant English landowners...
. The usual forms of estate are the freehold interest in a property ("in fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
") and the leasehold interest in it ("for a term of years certain"). In practice, ownership of an estate is often loosely described as "owning land".
- Concurrent estateConcurrent estateA concurrent estate or co-tenancy is a concept in property law which describes the various ways in which property is owned by more than one person at a time. If more than one person own the same property, they are referred to as co-owners, co-tenants or joint tenants...
and Four unitiesFour unitiesThe four unities is a concept in the common law of real property describing conditions that must exist in order for certain kinds of property interests to be created... - Saunders v VautierSaunders v VautierSaunders v Vautier is a leading English trusts law case. It laid down the rule of equity which provides that, if all of the beneficiaries in the trust are of adult age and under no disability, the beneficiaries may require the trustee to transfer the legal estate to them and thereby terminate the...
(1841) 4 Beav 115
Co-ownership
Co-ownership arises when tenure is held by more than one person, such as a husband and wife. There are two kinds of co-ownership: joint tenancy, where two parties own a property together, and tenancy in common, where each party owns a share in a property. An important difference is that with a joint tenancy, when one dies, title to the property passes to the surviving joint tenants, whereas with a tenancy in common, where one dies, his share becomes part of the assets disposed of according to his will or the rules of intestacyIntestacy
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
. This may mean the property has to be sold, unless the surviving tenants in common can afford to pay the value of his share to his beneficiaries.
Since Law of Property Act 1925 came into force, it has not been possible to create a tenancy in common in law. However, tenancies in common can still be created in equity, or behind a trust. This may arise if, for example, a married couple divorces.
Settlements and trusts
In English land law, "settlement" and "trust" mean the same thing. A common term is "settlements of land", which means "trusts over land".- Gissing v Gissing [1970] UKHL 3, Lord Diplock states a constructive, resulting or implied trust arises where it is inequitable to deny it
- Lloyds Bank plc v Rosset [1990] UKHL 14, contributing to the cost of running a house does not create a beneficial interest
- Hapeshi v Allnatt [2010] EWHC 392 (Ch)
Mortgages and charges
"Mortgage" is often loosely used to mean a large loan secured on land. Strictly, this is not correct. What the lender gives to the borrower is a loan; a mortgage used to be what the borrower gives to the lender in return for the loan. Since the Law of Property Act 1925 came into force, what the borrower gives to the lender is a charge, but the old-fashioned terms "mortgage", "mortgagor" (which means the borrower) and "mortgagee" (which means the lender) are still in widespread use.In this arrangement, the borrower or mortgagor has certain rights: the right to redeem the loan, the right to the equity (which is the difference between the property's value and the amount of any mortgage secured on it), the right to grant leases or subleases, and the right to sue. The lender or mortgagee also has rights: the right to hold the title deeds (which only applies to the first or main lender), the right to possession of the property (which is not normally exercisable unless the borrower falls behind with the payments), the right to insure the property at the borrower's expense, the right to grant leases if it has taken possession of the property, the right to tack further advances, and the right to consolidate if the borrower owes it two or more sums secured on the same property.
- Cheltenham & Gloucester v Norgan [1995] EWCA Civ 11
- Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54
- Cityland and Property (Holdings) Ltd v Dabrah
- Jones v Morgan [2001] EWCA Civ 995
- Barclays Bank v O'Brien [1993] UKHL 6
- Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44
- CICB Mortgages plc v Pitt [1993] UKHL 7
Licences and leases
- Ashburn Anstalt v ArnoldAshburn Anstalt v ArnoldAshburn Anstalt v Arnold [1988] is an English land law case decided by the Court of Appeal. It establishes that in English law rent is not required for the creation of a tenancy.-External links:*...
[1988] EWCA Civ 14, rent not needed to create a tenancy
- Street v MountfordStreet v MountfordStreet v Mountford [1985] is an important House of Lords judgment in English property law. The case set out the principles the court would deploy to decide whether someone's occupation of a property amounted to a tenancy Street v Mountford [1985] is an important House of Lords judgment in English...
[1985] UKHL 4 - Antoniades v Villiers [1988] EWCA Civ 3
- Bruton v London & Quadrant Housing Trust [1999] UKHL 26
- Leasehold
- Walsh v LonsdaleWalsh v LonsdaleWalsh v Lonsdale 21 Ch D 9 is an English property law case about the effect of the Judicature Acts. It is the authority for the equitable maxim that "Equity regards as done that which ought to be done"...
(1882) 21 Ch D 9, a lease was created despite absence of formality, for the purpose of a mill owner having a right to distrain goods in satisfaction of a debt. Equity regards as done that which ought to be done.
- History of rent control in England and WalesHistory of rent control in England and WalesThe history of rent control in England and Wales has adapted itself to changes in attitudes to the right to housing in mainland Britain. Concepts, such as rent control, security of tenure, statutory tenancy, regulated tenancy, fair rent, rent officer, Rent Officer Service and assured tenancy were...
Land registration
- Law of Property Act 1925Law of Property Act 1925The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
ss 2, 27 and 205 - HM Land RegistryHM Land RegistryLand Registry is a non-ministerial government department and executive agency of the Government of the United Kingdom. It was created in 1862 to register the ownership of land and property in England and Wales...
- Land Charges Act 1972Land Charges Act 1972The Land Charges Act 1972 is a UK Act of Parliament that updates the system for registering charges on unregistered land in England and Wales. It has largely been repealed, and updated in the Land Charges Act 1925.-Background:...
- City of London Building Society v FleggCity of London Building Society v FleggCity of London Building Society v Flegg [1987] is an English land law case decided in the House of Lords on the priority given to overriding interests and overreaching interests.-Facts:...
[1987] UKHL 6, parents had no overriding interest in house where daughter and son in law lived despite giving half the purchase price - Williams & Glyn's Bank v Boland [1980] UKHL 4, a wife whose name was not on the title deeds had an overriding interest under LPA 1925 s 70(1)(g) because she had contributed to the purchase price, and so the bank could not remove her from the property
- Land Registration Act 1925Land Registration Act 1925The Land Registration Act 1925 was a act of Parliament in the United Kingdom that codified and extended the system of land registration in England and Wales...
s 70(1)(g) - Land Registration Act 2002Land Registration Act 2002The Land Registration Act 2002 is an Act of the Parliament of the United Kingdom which repealed and replaced previous legislation governing land registration, in particular the Land Registration Act 1925, which governed an earlier, though similar, system...
Schs 1, 3, 4 and 8, on transfer
Proprietary estoppel
- UnconscionabilityUnconscionabilityUnconscionability is a term used in contract law to describe a defense against the enforcement of a contract based on the presence of terms that are excessively unfair to one party...
- Promissory estoppel
- Dillwyn v Llwellyn (1862) 4 De GF&J 517
- Inwards v Baker [1965] 2 QB 29.
- Willmott v Barber (1880) 15 Ch D 96, Fry J said proprietary estoppel requires a mistake about rights, reliance, defendant has knowledge of his own right, know of the claimant's mistaken belief and have encouraged reliance
- Crabb v Arun DC [1975] EWCA Civ 7
- Cobbe v Yeoman's Row [2008] UKHL 55
- Thorner v. Majors [2009] UKHL 18
Easements and Wayleaves
An easement is a legal right that a landowner can exercise over a neighbour's property. Danckwerts J set out the four rules about easements in Re Ellenborough ParkRe Ellenborough Park
Re Ellenborough Park [1955] is an English property law case primarily concerning the validity of an easement.-Facts:Ellenborough Park is a large area of parkland in Weston-super-Mare. The land was owned in 1855 by two tenants in common, who sold off parts of the land for the building of houses,...
[1955] EWCA Civ 4:
- There must be a dominant tenement and a servient tenement; and
- The dominant and servient owners must be different persons; and
- The easement must accommodate the dominant tenement; and
- The right claimed must lie in grant.
The dominant tenement is the one enjoying a right. The servient tenement is the one over which the right is enjoyed, and the easement is the right itself. So for example, if a drain runs out from 1 Acacia Avenue, under the boundaries of 2 Acacia Avenue, and then out into the main under the street, then 1 Acacian Avenue will be the dominant tenement, 2 Acacia Avenue will be the servient one, and the easement will be one of drainage.
The rule about accommodating the dominant tenement means that the easement must confer an advantage on a specific property. It is not possible to have an easement for the benefit of a specific person, only for the benefit of the owner of a specific property. The rule about lying in grant means that the easement must be a right that could be granted by deed.
Common examples of easements include rights of way, rights to light, the passage of a water pipe or drain, or the right to support from a property that lies beneath.
A profit a prendre is the right to take something from another person's land. Common examples are the profit of pasture which is the right to graze animals, the profit of pescary which is the right to take fish, the profit of turbary which is the right to cut turf or peat, and the profit of estovers which is the right to take wood. Profits a prendre differ from easements in that they can belong to a person rather than a property.
- Wheeldon v BurrowsWheeldon v BurrowsWheeldon v Burrows LR 12 Ch D 31 is an English property law case on the implying of grant easements. The case established one of the three current methods by which an easement can be acquired by implied grant, and has effectively been put into statutory force by Section 62 of the Law of Property...
(1879) LR 12 Ch D 31, implied grant of an easement
- Countryside and Rights of Way Act 2000Countryside and Rights of Way Act 2000The Countryside and Rights of Way Act 2000 is a UK Act of Parliament which came into force on 30 November 2000.As of September 2007, not all sections of the Countryside and Rights of Way Act have yet come into force...
Wayleaves
Authorities, companies or utilities sometimes use a power or right to route something through someone else's land. This usually relates to pipes or cables. Where there is a deed of grant from a landowner, the resulting right is an easement as described above. In the absence of a deed of grant, the rights the authority, company or utility has are collectively called a wayleave.The creation of a wayleave should results in payments to the landowner, because a wayleave does not amount to confiscation of land (West Midlands Joint Electricity Authority v Pitt [1932] K.B.1). The landowner is entitled to compensation for loss or damage, which is often a lump sum, plus a consideration, which is often an annual payment.
Covenants
- Tulk v MoxhayTulk v MoxhayTulk v Moxhay 41 ER 1143 is a landmark English case that decided that in certain cases a restrictive covenant can "run with the land" Tulk v Moxhay (1848) 41 ER 1143 is a landmark English case that decided that in certain cases a restrictive covenant can "run with the land" Tulk v Moxhay (1848) 41...
(1848) 41 ER 1143
Adverse possession
Adverse possession occurs where a party occupies another party's land as a squatter and remains in possession for twelve years. The squatter must show that:- He has been in possession of the land, and
- He intended to take possession of the land, and
- The possession has been adverse, and
- The possession has lasted for at least twelve years continuously.
The squatter must not have deceived or defrauded the owner, and under the Land Registration Act 2002
Land Registration Act 2002
The Land Registration Act 2002 is an Act of the Parliament of the United Kingdom which repealed and replaced previous legislation governing land registration, in particular the Land Registration Act 1925, which governed an earlier, though similar, system...
, there are additional conditions if the land has been registered.
"Possession" of the land must be exclusive and intentional. In Powell v McFarlane [1970] 38 P&CR 352, Slade J set out these principles. On possession:
- What must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have expected to deal with it, and that no-one else has done so.
On the intention to possess:
- ...the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title ... so far as is reasonably practical and so far as the processes of the law will allow.
There needs to be evidence of the intention to possess, such as placing a fence around the land and locking any gates in the fence. A squatter's statements about his intentions are not usually sufficient.
"Adverse" means that the squatter must have taken possession as a squatter. If he has taken possession with the owner's consent, or acknowledged the other party's ownership, then the possession is not adverse. So for example, if the purported squatter has paid rent to the owner, or entered into negotiations to purchase or rent the land, then the possession at that time is not "adverse". The possession must be such that the owner cannot access the land.
If the land has not been registered, then the steps noted above are not sufficient to obtain adverse possession. Instead, they suffice for the squatter to apply to the Land Registry to have the land registered in his name. The Registrar will then give notice of the application to the registered owner. If the registered owner agrees or is silent, then possession will normally be granted, but if he objects then the application will normally be refused. (There are exceptions for estoppel, or if the applicant has some other right to the land, or in the case of a reasonable mistake about boundaries.)
- UsucaptionUsucaptionUsucaption , is a concept found in civil law systems and has its origin in the Roman law of property....
- J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, Graham continued to occupy Pye's land after a license expired
- The Port of London Authority v Ashmore [2010] EWCA Civ 30, regarding adverse possession of a river bed.
See also
- Glossary of land lawGlossary of land lawA glossary of land law contains mostly middle English concepts, which are often found in older judgments, and refer to obsolete rights or remedies.-Glossary:Borough EnglishCopyholdEjectmentFeoffeeGavelkindMortgagePerpetuityPrimogeniture...
- Law of the United KingdomLaw of the United KingdomThe United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law...
- English lawEnglish lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
- Law of Property Act 1925Law of Property Act 1925The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
- English trusts lawEnglish trusts lawEnglish trusts law is the original and foundational law of trusts in the world, and a unique contribution of English law to the legal system. Trusts are part of the law of property, and arise where one person gives assets English trusts law is the original and foundational law of trusts in the...
- UK Property ClassificationUK Property ClassificationProperty ‘uses’ Classes are the legal framework which determines what a particular property may be used for by its lawful occupants. In England and Wales, these are contained within the text of Town and country planning in the United Kingdom Order 1987 Property ‘uses’ Classes are the legal...
- Compulsory purchase in England and WalesCompulsory purchase in England and WalesCompulsory purchase is the power to acquire rights over an estate in land, or to buy that estate outright, regardless of the willingness or otherwise of its current owner, in return for recompense. In England and Wales Parliament has granted several different kinds of compulsory purchase power,...