The Ownership of Land Law

Land law is concerned with the nature of the right involved in the ownership of land, the legal definition is; “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; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land. William Blackstone once notably stated that ‘land’ is ‘a word of very extensive signification’. The problem with land in general is that a particular land will often consist of either legal or equitable third party interests which lawyers have to examine how third parties acquire such rights in land and whether these third party rights and whether a purchaser is bound by them, Megarry and Wage stated “The central dilemma of English land law is how to reconcile security with ease of transfer.” This statement refers to third party interests in land where transparently those whom obtain such rights desire for its protection, whereas the purchaser does not want to be bound by such rights. This paper will scrutinize the given problematic scenario and then categorise the various third party interests relevantly existent, the formalities of such interests and the enforceability of those rights on the purchaser

The history of land law displays that the criterion governing the regulations of land have evolved extensively with the Norman invasion in 1066 establishing the doctrine of tenure and estates. The doctrine of tenure is concerned in relation to whom land is held for and under what terms whereas the doctrine of estates deals with the duration of ownership in attendance, William the Conqueror attained ownership of all land in England to which he granted in return for services the nature of operations involving delegation and sub-delegation became to be known as the feudal system and existed until the end of the 13th century with the formation Statute Quia Emptores passed by Edward I of England and prevented tenants

from alienating their lands to others by subinfeudation, by this stage the common law courts had become increasingly informal and inflexible as a resolution, the Court of Chancery was

established in the 15th century as an attempt to provide a remedy where inadequacies had occurred from the common law, which later developed into a code of principles that as revealed in the Earl of Oxfords Case in 1615 equity will prevail where conflicts between equity and the common law had arose today and with the formulation of The Judicature Acts 1873/75 the administration of the common law courts and that of the equity courts where combined to create a one court system although the principles of each remain separate they are administered in one court.

The twentieth century is characterised by the increasing intervention of the state in the regulation of the use and occupation of land the revolution of land law and the keystone of modern land law is settled within The Law of Property Act 1925 it restructured the number of legal interests and legal estates. The policy of the act was to reduce the number of legal estates down to two which is cited in Section 1(1) of The Law of Property Act (LPA) 1925 which classifies that the only estates in land which are capable of subsisting or of being conveyed or created at law are; An estate in fee simple absolute in possession (freehold),

A term of years absolute (leasehold). Section 1(2) of LPA 1925 provides the only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are: an easement right or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute: A rent charge in possession issuing out of or charged on land being either perpetual or for a term of years absolute; A charge by way of legal mortgage; and any other similar charge on land which is not created by an instrument and finally rights of entry exercisable over or in respect of a legal term of years absolute or annexed, for any purpose to a legal rent charge.

The issue with this particular scenario is that the purchaser of the bungalow is challenged with various third parties whom all may have various interests whether legal or equitable or neither of them may have an interest at all. Section 1(3) LPA 1925 instructs that any estates or interests which do not comply with Section 1(1) or Section 1(2) LPA 1925 can only be deemed to exist as an equitable interest these are rights recognised by equity such as the presence of a trust or covenant, before the exchange of contracts a solicitor observes the “title” to discover what third party interests exist and various relevant matters concerning the land, as the purchaser in this case has managed their own conveyancing it appears not to have satisfied these procedural aspects.

The first mentioned third party is Lowry’s partner of five years whom is refusing to refrain from residing at the property she is situated in the main house and not the bungalow considering whether or not she has a legal, equitable or and interest at all require various factors to be examined, assuming by the word ‘partner’ the individual is not a spouse to the registered proprietor. However if the partner was married to the registered proprietor then an interest in land would have arisen by virtue of statutory provision such as Section.30 Family Law Act 1996 which confers a spouse whom is not a legal owner a right to occupy the matrimonial home as long as the various decisive factors indicated under the act suffice such as the requirement for the presence of a legal marriage, additionally the property must be the matrimonial home and this right is independent of any equitable interest arising under a trust which the non-owning spouse may have these rights are known as the matrimonial home rights. In this setting the partner has no legal interests associated with the land in question, leaving the possibility of an equitable interest existing, the formation of a trust between the parties would constitute to an equitable interest, a trust is a fiduciary relationship whereby property is administered by the trustee for the benefit of another (the beneficiary) it enables the title of the land to be split between the trustee who holds the legal title and the beneficiary who holds the equitable title, the powers and duties of the trustees and the rights of the beneficiaries are governed by The Trusts of Land and Appointment of Trustees act 1996. There are two manners of trusts which are express trust over land and implied trusts over land. An express trust over land can be created expressly by a declaration of trust which requires a deed. Section 53(1)(b) necessitates that a declaration of the trust over land must be in (or evidenced by) signed writing in order to be enforceable, hence if such a deed exists then an express trust over land will create an equitable interest over the land in this case it is assumed that such a document does not exist as there is no mention of it there thus consequently an express trust does not exist either.

However second form of trust known as an implied trust, as provided by LPA section 53(2) does not have to be in the form of writing, there two forms of implied trusts the resulting trust and the constructive trust both of which can produce a implied trust over land. The definition of a resulting trust remains one to be clarified. Professor Birks suggests the meaning is consequent from Latin ‘reslire’ meaning to ‘jump back’ that is the equitable interest in property repositions to its original beneficial owner nevertheless a resulting trusts generally appears where a contribution to the acquisition of a property has occurred without allocating title clearly and recognises the equitable proprietary right of the contributor whom contained the intention to attain some property rights this was illustrated in the case of Dyer v Dyer [1788] 2 Cox Eq 92. A presumption is made in circumstances where no consideration is in attendance but resulting trust still exists this was the case in Hodgson v Marks [1971] Ch 892 however the title of the property is solely registered to Lowry and not the partner. The other form of implied trust is called a constructive trusts cannot easily be defined. This is clear from the case Carl Zeiss Stiftung v Herbert Smith (No. 2) [1969] 2 Ch 276, where (at p. 300) in the words of Edmund Davies LJ ‘English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague, so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand’. Rather, they have traditionally been found to exist in a series of disparate and changing situations applied to numerous and diverse factual situations from which a number of illustrative examples can be drawn. Lloyds Bank v Rosset [1991] AC 107. Lord Bridge noted a beneficial interest in a property could be established by a person not on the legal title there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between [the parties] that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between partners however imperfectly remembered and however imprecise their terms may have been. Once the finding of an agreement is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive or a proprietary estoppel.” ] the court must rely entirely upon the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied upon to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary for the creation of a constructive trust. But as I read the authorities, it is at least extremely doubtful whether anything less will do.”

The second third party mentioned is the next door neighbour Rene, whom frequently and for the past twenty two years has been walking his dog along a path on Lowry’s property, considering that the neighbour has been able to proceed for such an extensive period and is able to do without trespassing with the existence of a licence which will be consented by both parties and subject to terms however an even more accessible way for the neighbour will be with the presence of an easement which is a right or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute it is created without restriction on duration or for a fixed duration it is an interest over another’s land many easements exist such as rights of drainage, rights to light but for in this case there may be a right of way, the general rule is that unlike contractual licences landowners cannot simply create easements as they desire as noted by Lord Brougham: “[i]ncidents of a novel kind cannot be devised and attached to property at the fancy or caprice of any owner.”

Land Registry figures suggest that at least 65% of freehold titles are subject to one or more easements and can be fundamental to the enjoyment of property. For a right to be considered an easement it must contain and comply with four requirements which were identified by Lord Evershed MR in Re Ellenborough Park [1956] Ch 131:

Firstly there must be a dominant and servient tenement in this case the dominant tenement is the neighbour whom uses the easement and the servient tenement is the path on Lowry’s property where the easement is exercised, the benefit being attached to a ‘dominant tenement’ and its burden being asserted against a ‘servient tenement’”. The second characteristic is that the easement must accommodate the dominant tenement the right claimed must be “reasonably necessary for the better enjoyment” of the dominant tenement the dominant owner is personally benefited unless their land is also benefited at the same time, there must be proximity as neighbours they will suffice if the right of way for the neighbour benefits there land and not just their personal amusement as emphasised in Hill v Tupper (1863) 2 H and C 121. Thirdly another requirement is that the dominant and servient tenements must be owned or occupied by different people otherwise there will not be an easement because of unity if seisin this is not the case in this situation. The final requirement of an easement is that it must be capable of being subject to a grant which has four aspects

there must be a capable grantor and grantee both parties must be owners of the land and legal persons the principle of nemo dat quod non habet applies (no-one can give something they do not possess) thus if the neighbour must be the legal owner of their land, another aspect is that the right must be sufficiently definite and not be too imprecise to describe in William Aldred’s Case (1610) 9 Co Rep 576: a right to an unspoilt view did not exist as an easement as it did not have a sufficient accurate definition and was vague however a right of way is not in general problematic to define or demonstrate. Another element is that the right must not interfere too severely with the servient tenement the use of the defined space which is the pathway will not be considered to restrict exceedingly to Lowry’s rights of privacy and enjoyment, the last element is that the right must not generally require positive action or expenditure on the part of the servient owner.

The neighbour appears to satisfy the requirements of an easement however there are a number of ways of acquiring easements which are express creation, prescription, implied creation. An express grant and reservation is created expressly between landowners which may be either legal or equitable, which will be legal if it satisfies S.1(2) LPA 1925 and

it is created by deed (S.52 LPA 1925 and S.1 LP(MP)A 1989) equitable easements can only be created expressly. An express easement will be equitable if it complies with S.2 LP(MP)A 1989. A prescription which is more proximate with this scenario is the possibility for an easements to be created simply by continuous usage over a long period at common law, by lost modern grant and as provided by the prescription Act 1832 the proof to such a creation is a continuous usage of the right for 20 years which is satisfied by the twenty two years of repetition of the right by the neighbour. An implied creation is only available on a sale of part.

the enforceability The enforceability rules which govern whether a purchaser if the servient land is bound by the burden of an easement, are different depending on how the easement was created. (A purchaser of the dominant land will obtain the benefit of an easement under the intended effect of S.62 LPA 1925). Easements which are expressly created (whether legal or equitable) must be protected by registration On the other hand, if you enjoy the benefit of a prescriptive or implied easement (which are both always legal) you may not be aware of the nature of your interest until your right is threatened by a subsequent purchaser of the servient land. It therefore follows that such easements may bind the purchaser of the servient land as overriding interests (under Schedule 3 para 3 LRA 2002) provided that certain conditions are fulfilled (see lecture 6 para 6.3.3 above).

Joyce whom is Lowry’s cousin is the most germane to the operations of Vincent. Previously Joyce was transparently a licensee at the bungalow a contractual licence existed where Joyce was to care for Lowry’s mother rent free after the death of the mother it is important to distinguish between a licence and a tenancy the distinction was made clear by Lord Denning; “In all cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like, to negative any intention to create a tenancy.” The previous family arrangement was for Joyce to care for Lowry’s mother up until the time of her death. The estate held by a tenant under a lease or a term of years absolute is as outlined in Section 1(1) LPA 1925 only one of two estates which can be legal. Leases where recognised as an interest in land in the sixteenth century for a term of years absolute to exist the requirements of a lease must suffice as it is critical to determine whether the relationship between the parties is a lease or mere contract (licence) to use the land this is also vital in determining whether Vincent the purchaser of the bungalow will be bound by such an agreement if one still exists. The term of years absolute is defined at significantly in Section.205(1)(xxvii) LPA 1925 but most of the rules to what constitutes a lease are found in case law. “Its distinctive feature is the grant to the tenant of exclusive possession of defined land for a period of pre-arranged maximum duration, the grantee (tenant) always holding some lesser term than that held by his grantor (landlord)”. A term of years estate lasts for the duration of the lease and can be sold, given or inherited a term of years requires three elements which are a capable grantor and a capable grantee, a fixed beginning and a fixed end to the term must be certain Lord Greene explained, “A term created by a leasehold tenancy agreement must be expressed either with certainty and specifically or by reference to something which can, at the time when the lease takes effect, be looked at as a certain ascertainment of what the term was meant to be”. Joyce has mentioned to Vincent that Lowry wanted to give Joyce certainty and as a result agreed she should rent the bungalow for twenty five years.

The last intrinsic element is that of exclusive possession the general rule is that if a person occupying another’s land does not obtain exclusive possession they are not regarded a tenant but a lodger, or a licensee which can be created by contract

It is intrinsic to the temperament of a lease that exclusive possession is permitted. Exclusive possession as noted by Lord Templeman in Street v Mountford “A tenant armed with exclusive possession can keep out strangers and keep out the landlord”, which means first that the tenant has the right to exclude others, including the landlord, from the property the tenant in effect is exercising the right as if he were absolute owner of the property. The right to enter, view and repair is often reserved, but this is not inconsistent with exclusive possession in fact, it further supports the notion that the tenant has in all circumstances the right to exclude people from the premises, reserving only limited rights for the landlord to view for limited purpose. A deed is necessary for the creation of a legal lease the formalities for the creation or transfer of legal estates and interests in land are governed by Section.52(1) LPA 1925 which provides “All conveyances of land or any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed”; Deeds have formal requirements to be enforceable which are set out in s1 Law of Property (Miscellaneous Provisions) Act 1989 for a document to equate to a deed it must make it clear on the face of te document that it is intended to be a deed and it must be executed as a deed and then delivered.