LaND LAW PART 1
UnderstanDing land law
PART 1
AN introduction to land law
I am writing this article to explain the basics so that any new land law student will go into the subject with a clear understanding of the doctrine and principles they will encounter.
I get a lot of students that come to me because they struggle with land law, especially recently PGDL students from BPP. This tells me that the Land Law course at BPP is designed in a way that omits the history and context of Land Law. Studying Land Law as a series of rules and pieces of legislation will make the subject obscure to any law student.
How can you explain the Land Law system without talking about how and why it emerged? Where it comes from? What is the rationale behind certain rules? An introduction to Land Law is not fixtures and fittings. I am writing this article to explain the basics so that any new Land Law student will go into the subject with a clear understanding of they are studying and what they will encounter.
Studying Land Law can benefit you in a variety of ways. Land Law, like other legal courses, encourages students to approach issues and situations logically and gives a disciplined framework within which to operate. To properly answer any problem question, an accurate, complete, and logical examination of how the facts of the question fall into various categories is required.
For example, there are two types of land title systems: registered title and unregistered title, and the set of rules that apply to each are vastly different. To properly solve a land law problem question, the student must first determine which category is most relevant. Second, the student must follow the relevant set of rules in steps.
Students often have divergent viewpoints. Some students enjoy its difficulty, since it enables them to clearly highlight areas in need of radical reform and makes the subject accessible. Although, in order to be a good Land Law student, students will need to have a broad foundation understanding of the subject, this allows students to better appreciate the interconnected difficulties.
Land law may be an approachable and interesting topic and the historical component provides critical context and colour to the principles. For instance, England and Wales have a finite quantity of land and a dense population, implying that land conflicts are unavoidable which teaches us about the community we live in and how Land Law applies.
history of land law
The development of mankind is a complicated yet fascinating topic, particularly in the twenty-first century. It has been defined by the state's increased involvement in the regulation of land use and occupancy (e.g., housing legislation, planning law, and tenant protection regimes). While familiarity with the fundamental concepts of Land Law is necessary for solicitors and barristers, it is also necessary for laypeople that make arrangements for the ownership, possession, and use of land in their daily lives.
For instance, in a market-based society, the land must be freely transferrable, but it must also provide security for those who own it and others who have lesser rights in it, such as the ability to walk over it, namely a right of way. Numerous Land Law issues will include not just two, but three sets of conflicting interests: those of a land buyer (purchaser), a land seller (vendor), and a third party with a lesser interest in the property (e.g. a right to live there for life, or a loan secured against it).
Since the 1998 Human Rights Act, all areas of law have been re-examined, and Land Law is no exception. Several of the cases you may encounter will make reference to Human Rights Principles. Public authorities are required to protect these customary rights, new laws must adhere to them, and courts must interpret legislation in conformity with the Convention of Rights in order to apply the rights consistently with Common Law.
the LAND LAW FRAMEwork
There are four critical things to ask when confronted with a Land Law issue:
Is the title to the land registered or unregistered?
What interests may exist in the relevant land?
Is each of the possible interests legal or equitable?
Have any necessary steps been taken to protect each of the possible interests?
You must always be prepared to respond to them and explain why the responses are significant. Due to the extensive statutory intervention in Land Law throughout time, the dates on which events occur in a problem issue are often important, necessitating a 'before and after solution. In this manner, questions will often test your understanding of significant legislative developments. However, case law is important, whether it is used to interpret statutory rules or to create new legal norms.
Although it is recommended that you proceed topic by topic through this subject, you should keep in mind that Land Law has a coherence that is lacking in some legal subjects and that there are themes that run throughout the subject and lend it a sense of unity. This is evident in the cross-referencing found in Land Law textbooks. For example, understanding the distinctions between proprietary and personal rights, legal and equitable interests, and registered and unregistered conveyancing is critical to understanding modern Land Law.
Foundations of Land Law
Land law is inherently complicated, mainly because of the way land differs from most other pieces of personal property (chattels).
First, land lasts practically forever; it is possible to project ownership over a longer period.
Second, the land is more valuable than most personal possessions, this means you can use the land as security, encumbrances and charges can be put on land in financial loans and mortgages, which you do not get in most chattels.
Third, pieces of land are unique, thus unlike a share in a company, it is not an adequate recompense if someone takes some part of it away, to get a quite different bit in exchange.
Unlike most chattels, to enjoy the land you need cooperation, assistance, or rights over neighboring land, for example without a right of way you may be unable to enter your land through the highway. Thus the land is interdependent and therefore you have a complex of rights and obligations that go with the ownership of each piece of law, however, you construct a land law system.
The English system is the most complicated because unlike most European countries we have never had a complete overhaul of the law. We have never had a complete overhaul, this only historically occurs in the aftermath of something like a revolution, because established rights to land are very hard to incur on, the compensation would be tremendous. The nearest we have had was in the 1920’s, but even that land law reform was built heavily on an existing foundation. The result of this is the present law still embodies some concepts and a lot of phrases that date back hundreds of years.
System of Land Law
There are two limbs of modern Land Law, which date back, a long way:
First, there are still some traces of customary law. This used to be the case until well into this century in some respects of inheritance. It does still apply with rights of user, Easements, and profit a prendre.
Second, there are elements in land law that date back to Feudal law, these are discussed below.
Tenure
In summary, in 1066 William I nationalized all land, and there is a limit to how much one can do with the land. William, I granted land out in fragments and counties, in return for services. For example, he would grant land for Knight Service, which meant a knight would perform tasks (fighting in wars) for several days of the year. Land, which is held in return for a service, is called tenure.
Tenure describes services for which land was held. Through the centuries this system had lost most of its vitality, these services were muted into money; money lost its value so they were not worth preserving. At this point, this system would have collapsed had it not been for the fact that that were incidental profits (Incidents) that the crown enjoyed out of tenures. For example when a grantee died his successor had to pay the crown to be let into the land. This was beneficial to the crown therefore the crown artificially preserved this system for several hundred years, until 1660. Smith in Property Law, 4th ed., (England: Longmans, 2003), p. 34, says:
Although the doctrine of tenures has minimal significance today, it is crucial to understanding the development of interests in land. The basic idea is that the crown owns all land and grants rights to individuals. These individuals do not themselves own land, but instead hold of (are tenants of) the Crown. In the past this was significant because services might be due to the Crown and the crown would have valuable rights (incidents), for example on succession of a new tenant. The nature of both the services and the incidents would vary according to the form of tenure. Tenants could in turn sub-infeudate to others, eating a further link in the feudal chain.
Control over tenures has medieval origins. As early as 1290, the statute uia Emptores stopped the creation of new tenurial relationships (save by the town). The most common form of tenure was socage, in which the service was nonetary payment. As inflation reduced the value of these payments, the incidents became the most valuable benefit of the feudal lord, especially the Crown. However, the Tenures Abolition Act 1660 converted nearly all tenures into cage and abolished most of the incidents. Thereafter, tenurial relationships lost virtually all their significance. Inevitably, the identity of mesne lords (those between the crown and the ultimate tenant) became forgotten over the centuries.
The Tenure Abolition Act 1660
After the Act only two tenures remained:
§ The only freehold tenure, which remained, was called common socage (tenure of land secured by honorable but not spiritual, military, or servile duties).
§ The other was called copyhold tenure (the property was held in accordance with manorial tradition, and the title document obtained by the tenant was a copy of the necessary entry in the manorial court record).
The reason these are significant is that it mattered which one you had. It mattered because copyhold tenure still had incidents attached to it, this made it less valuable due to the fact it had payment attached to it. It also has an entirely different system of land transfer (conveyancing). Therefore, if you brought land which was copyhold not only was the market discount 20% to reflect changes, but if you came to buy it or sell it you dealt with it, in a completely different way, so it was a major complication.
This complication lasted until, the Land Property Act 1922, abolished copyhold. The thing that one wished to have happened that did not, was instead of abolishing copyhold, why not abolish the whole notion of tenures altogether that was serving no purpose. The distinction was removed because it was complicated in law and practice, but what they left was a situation, which is still true, technically today all land is held of the crown in common socage. Therefore there is technically still a tenurial system. For all practical purposes except one this does not matter, the only significant situation where all land is held of the crown in common socage is Escheat. This is a very rare find.
Escheat
Originally, if the land was granted to a person and his heirs, when and if he ran out of heirs, the law states the crown can reclaim the land. This can no longer happen now because the rules of inheritance now make provisions of what is to happen is someone dies, even without knowing who his nearest relative is. The land now goes somewhere and does not escheat. The same is true for limited companies that own the land; statutory provision says what is to happen to the land it owns. There are some corporations that are not limited companies, which do not fall within that legislation, and if one of those dissolves it is possible for there to be an escheat. Smith, in Property Law, 4th ed., (England: Longmans, 2003) p. 35 states:
“Does the doctrine of tenures have any modern significance? In exceptional circumstances the land can still revert to the lord (escheat), although escheat has been drastically limited by legislation.”
Grants
When the land was granted it could have been granted one in two ways. First, they could be made to A for life or they could be made to A for life and to his heirs. In the first case when the grantee’s life ends then the grant ends, it will run out and the Lord resumes control of the land. In the second case, (a grant to the grantee and his heirs) the effect of the grant is when the grantee dies if there are heirs, the heirs will receive the land, and possession will continue. We call such an inheritable right (to this day) a Fee. In other words, a Fee is where a grant is inherited.
Estate
Both these grants and its inheritance are for a period of duration, the first being shorter in duration than the latter. A term for the measurement of the duration of a grant is called an Estate. Pollock and Maitland in History of English law, 2nd ed., (CUP Vol.2, 1989), p.10 described how an estate is “projected on the plane of time” with different durations or quantities defining different estates. This is confusing because an estate is used in law in two other ways. You know it is used physically as a term for a housing estate and it is also used as a term that represents the aggregate of a deceased person’s property. The first type of grant would be a life estate and the second a life estate with the estate in fee. In Feudal law, if you wanted to sell your estate, you could not directly do that, because the whole theory is that there was a personal relationship between the grantee and the Lord. Someone else could not be put in your place without the consent of the Lord. You could only put someone in your place through subinfeudation.
Subinfeudation
This was a bit like a sublease, if you have a lease from a landlord for 99 years, you can create a shorter-term whereby somebody else can go into possession and pay you to rent while you still pay rent to the landlord, it can be described as a ladder of feudal relationships. This has now ended through the early statute Quia Emptoris. Smith, in Property Law, 4th ed., (England: Longmans, 2003) p. 35 states:
“…statute Quia Emptores applied only to freehold land, with the result that new leasehold tenures can still be created. Without this qualification, leases in their present form could not have developed.”
Now today it has become straightforward and someone else can be put in your place. If you are A and want to transfer your land to B, it can be directly and it is called substitution. What we have today from the end of the 13th century onward where land is brought and sold, what is being transferred is the grant, although it may have been granted hundreds of years ago, it is the closest we can come to land ownership.
The important thing about common law remedies is that they give you a very powerful right, powerful in two ways. First, is the remedy itself, most common law remedies are damages for loss. The value would be awarded for a loss, but, because the land is different and unique, the common law awards specific restitution of land. To make someone give something back in common law is a rare occurrence (this is equity at work). The second important thing about remedies is their scope, it does not matter who has taken your land or who has evicted you from your land the remedy will lie against anybody.
This becomes particularly important if someone walks onto your land and decides he wants it. It will not matter whether he knows the land is yours or not, your rights are good against the whole world, against anyone (rights in rem). If you create rights that are good against anyone then you have to develop a system whereby it is possible to discover who does own the land. If rights are being claimed on possession, which is being supported by evidence of ownership, then a system must be in place by where evidence can be produced. Because this becomes such an important matter, conveyancing (land transfer) itself becomes a whole independent subject, one that sometimes drives changes in the substantive law.
Having done this common law starts to elaborate a bit on the basic ownership of the right. We have two types of estates, the life estate and the estate in fee. What is the point of giving someone land just for the duration of his life? This is something, which is not done very much today. It was done a lot in the last century. One of the things landowners had to do was to try and make provisions for their children and families. The land was the only real source of wealth nothing else really counted for much. If a son or daughter was to be endowed, then it was land that had to be used.
You may not want that land to stay away from the family and one way of avoiding that (if you have the fee simple) was to create a life estate for the youngest son, by doing so giving him a bit of your land for his possession for his lifetime. What happens to that bit of land when he dies? It is easy to see what happens to the estate that you give him. The estate is measured by his life, when his life expires the estate ends and it is returned to the main branch of the family (to the person who enjoys absolute possession in fee simple).
Beneficial interests
A father can leave his son A his land for life. After A’s life, the land will come back into the main branch of the family. This means there is going to be a period of time when two people will have ownership-type rights in the same land. A has possession he is entitled to use and have the land. The father has not given away the estate he has the fee simple (an indefinite interest in the land). The father has only given away the right to enjoy the land for a certain limited period. If he dies during that period the property still belongs to the family they do not have possession but the land is in reversion. The land can also be given to A and then to B, thus the land will stay away for a longer period until B dies. This period is called land in the remainder. There can be as many remainders as you like as long as you do not use the words (as used today) fee simple:
To A for life, to B for life, to C for life, to D not for life but fee simple
What the above bequest has done then is ended all the reminders. It will end the right for life dispositions and land becomes in reversion to D in fee simple. The reason why it is called a fee is simply because it makes it possible to create an estate, which yes can be inherited, therefore it was a fee, but it could not be inherited by anyone. It could only be inherited by what we call an issue. The issue is children, grandchildren, and great-grandchildren (this is short for the issue of your lions), not brothers, sisters, aunts, uncles, cousins, and nephews. The latter group could not inherit and because their rights were cut down it is called fee tail. If I have a fee simple and want to make provision out of this which goes beyond someone’s life,
To my son john in fee tail
What this ensures is that, if John dies and he has children or grandchildren, a trustee called an executor under a will, then can trace a direct line to direct descendants, who will inherit, and as long as there is generation after generation they will keep inheriting. There is going to come to a point, where theoretically and practically there will still be collateral heirs who will be able to inherit under fee tail. The system of succession mimics the devolution of the Crown. Sparke, in A New Land Law, (Oxford: Hart 1999), p.53 states: