Land law backgroun

• Land law


  • Importance of parliamentary intervention in shaping the current rules
  • Cannot be assessed without statute
• Law of Property Act 1925 introduced, greatly simplifying land law


  1922-1925
• Lord Birkenhead, the Lord Chancellor: 'When studying property law, he had been appalled at its complexity and vowed that he would one day ensure that it was overhauled'
• Legal property rights in land


  Clearly and concisely set out in the first section of the Law of Property Act 1925
• Rights with more complicated content

  Relegated to the status of equitable interests, could take effect only under a trust
• Acquisition of legal or equitable property right in land

  Sections 52, 53 and 54 of the Law of Property Act 1925 contain the basic formality requirements that must be satisfied
• What Does Birks 1998 say about private rights to use of land?

  An important reason for focusing on private rights to use land is that it allows us to study rules that are linked not only by context in which they apply but also by their underlying concepts
• What does McFarlane 2008 say about the special features of land?

  Special features of land include its permanence, the uniqueness of each piece of land, as its physical location can never be shared by another piece of land, its capacity for multiple simultaneous use, its social importance, and its limited availability
• When creating a lease, a freehold owner (A) in effect gives ownership of that land to the holder of the lease (B) for a limited period. This means that B, even before taking possession of the land, acquires a property right in the land: a right that is capable of not only binding A but also third parties who later interfere or deal with the land.  
• What does the European convention on human rights say about special features?

  Article 8 of the Convention states that everyone has the right to respect for ‘his home’ and in the majority of cases, the concept of home is linked to the social importance of land.  
• Property rights

  Rights that relate to something independent of a specific person, such as land
• Personal rights

  Rights that bind only a specific person
• If B has a personal right against A


  That right binds only A
• If B has a property right

  That right is capable of binding not only A, but also third parties, such as C
• What are the three key questions to property rights?

  The content question, the acquisition question and the priority and defences question.
• What is the content question?

  The classification of a right as personal or proprietary depends on its content. For example, it is the different content of their rights that explains why a lodger in A’s house has only a personal right against A, whereas a party with a lease of A’s house ahs a property right.  
• What is the acquisition question?

  Special rules regulate the acquisition of property rights in land, and B must satisfy such rules in order to show that he or she has in fact acquired such a right. For example, it may be that A is willing to give B a right to exclusive possession of A’s house for a limited period, and so B’s right will have the content required of a lease.  
• how can a balance be drawn in the aquisition question?

  In framing acquisition rules, a balance can be drawn between the needs of B and C. B;s preference may be that the elase can be acquired as quickly and informally as possible, by a mere oral agreement between A and B, in some relatively rare cases, that is possible
• What does the priority question look at?

  The starting point is that the property right that was acquiredfirst in time will prevail.
• What does Williams v Gyln's Bank v Boland show?

  As Mrs Boland's right arose before the bank's right so she was the 'B' holding a property right in A's land (Mr Boland's), because of her dealings with Mr Boland, therefore the bank was 'C'. The point of a defence to a pre-existing property right therefore, is that it gives a means for C to take priority and prevail over B, even if B's property right arose before C's property right.
• what is the impact of equity in land law? Equity, when used to refer to a source of legal rules, refers simply to those current rules that are based on rules initially developed in the courts of chancery. Originally, those courts were regarded as having more flexibility and broader discretion than their common law counter parts, and were therefore in a position to mitigate some of the harshness of the common law rules, by providing a form of ‘safety valve’.  
• What does equity mean for the acquisition question?

  Equity also provides additional means by which a property right may be acquired, or where B relies solely on one of those means of acquiring a property right, B’s right can only be an equitable, as opposed to a legal, property right.  
• In most cases, acquiring an equitable property right does not require the same level of formality as is generally demanded before a legal property right can be acquired. For example - Williams & Gyln's Bank v Boland, where two cohabitating partners lived together at home with the house only registered in A's name, B had no legal right but the house can be held on freehold trust for B.
• A freehold trust gives gives B an equitable property right in relation to A’s land. It is possible for B to acquire a right under a trust without the need for registration. It is possible for B to acquire a right under a trust even if there have been no formal dealings between A and B at all.  
• The basis of equitable property rights (as in Smith 2005) is a particular type of duty being owed by A to B. Where such duties exist, an equitable property right can arise. This means that, when seeking to show that he has acquired such a right, B’s principal concern is to show that A has come under such a duty to B.  
• B can acquire an equitable property right through existence of a contract or proprietary estoppel. This doesn’t mean that if A is under a duty to B, B will necessarily have an equitable property right. In most cases, the fact that A is under a duty to B simply means that B has a personal right against A.  
• The key aspect of a trust, is that A is under a duty to use a specific right for the benefit of B, where that right of A is a property right in land, such as a freehold, B’s right is them prima facie binding on anyone later acquiring A’s property right.  
• Equity and the defences question:


  If B has an equitable property right, the fact that such a right is somewhat easier to establish than a legal property right is mitigated by the fact that it is also easier for C to establish a defence against that right than against a property right.  In that sense, equitable property rights are weaker than legal property rights.   
• The law of Property act 1925 for example, was part of a set of legislation, introduced from 1922-5, which greatly simplified land law. When introducing part of that legislation into the HoL, Lord Birkenhead, the Lord Chancellor, recounted how, when studying property law, he had been appalled at its complexity and how vowed that he would one day ensure that it was overhauled.  
• The very first section of the Law of property act 1925 clarifies the content question in relation to legal property rights, by setting out a clear and shoer list of the permissible legal property rights in land. Rights with more complicated content (such as a right to have exclusive possession of land only for the duration of someone’s life), formerly capable of counting as legal property rights, were relegated to the status of equitable interests, and could take effect only under a trust.  
• As far as the acquisition question is concerned, sections 52, 53 and 54 of the Law of property act 1925 are very significant as they contain the basic formality requirements that must be satisfied if B is to acquire either a legal or equitable property right in land.  
• What legislation was available before LPA 1925?

  Land Registry Act 1862, Land Transfer Acts 1875 & 1897
• what were the problems with the land registration act?

  There was an uneven observance of transfer registrations, prospects of fraud or mistake were high, it was flawed and ineffective, this was voluntary and set standards so high, even if it was met, it had many problems and so was considered hopeless.
• What were the problems with the land transfer acts?

  It was simplified but dependent on voluntary registration, very few people bothered to register or were able to see the benefits. This act didn't repeal the land registry act so they both existed at the same time making things very complicated.
• Robert Torrens designed and implemented a system of land registration in South Australia (Real Property Act 1858). It instituted a central register recording all transactions of title - effective transfers of property were dependent on this act of registration. It was compulsory and the success of the transfer depended on the registration.
• What are the three principles of the Torrens title?

  Mirror principle, curtain principle, insurance principle.
• Mirror principle:

  the mirror principle reflects interests that reflects land, you can see the entirety of interests that affects any land at a time.

  The register should operate as an accurate reflection of the rights which affect the land. Publicly accessible. All interests and transfers which affect land should be registered.
• Curtain principle:

  The curtain principle is the reverse, it isn't something that would bind a future purchaser, then it doesn't need to be seen by the purchaser so a 'curtain' can be drawn over it. This is a big problem. If purchasers aren't affected by the existence of rights, they should be kept off the register. No need to explore beyond the register.
• Insurance Principle:

  The insurance principle shows the idea that the state should ensure that if there are any mistakes then the state will indemnify you for your loss. The state guarantees the accuracy of registered title. Rectification of and compensation for mistake causing deprivation or disadvantage.
• What are the key features of the Land Registration Act 1925:


  It sets out registration requirements of interests in land, that these interests need to be registered in order to bind future purchasers.

  it underscores a new regime of formalities and evidencing title.

  It provides a compulsory nature to registration.

  Challenges the general rule when asking the question of enforceability, asking whether it's binding irrespective of the registration or not.