#17305 - The Nature Of Land And Rights - GDL Land Law

Land (s.205(1)(ix) Law of Property Act 1925 (LPA 1925)

• Includes physical land, buildings, fixtures (corporeal hereditaments), and rights over land (incorporeal hereditaments)

• Includes ground below (Grigsby v Melville – cellar) and lower airspace above the ground (Bernstein v Skyviews)

• Treasure belongs to the Crown (Treasure Act 1996)

• Forgotten property is not abandoned property (Moffat v Kazana)

Fixtures vs Chattels

• Attached to the land is part of the land (Holland v Hodgson), two part test:

  • 1) Degree of Annexation – if moveable or resting on its own weight then a chattel (Culling v Tufnell)

  • 2) Purpose of Annexation – was it put there to improve the property? E.g. a wall hanging passes degree test but under purpose test it fails as only there to be looked at and enjoyed (Leigh v Taylor)

• Chattels are goods and others not part of the land.

• Anything that is a fixture on the date of sale or mortgage is a part of the property and cannot be sold/removed.

Land users fall into one of three categories

• A – a property/proprietary right (e.g. a lease, easement, covenant)

• B – a personal right (e.g. they are a guest of X)

  • All this means is that they cannot be classed as a trespasser (Thomas v Sorrell).

  • Can only be binding in so far as they are in personal constructive trusts.

• C – no right at all (e.g. a trespasser – nb one day they may become an adverse possessor and gain a property right).

  • Can be removed easily (possession order can be <24hrs).

Purchaser for value without notice (‘T’)

• If A’s right is proprietary, then it is capable of binding T or capable of binding the land.

  • This right is a part of the land – they affect the land potentially for ever.

• B’s right is personal it is inherently incapable of affecting/binding T on the land.

  • King v David Allen [1916] – above principle declared.

  • Street v Mountford [1985] – Landlords tried to call as many things as possible a license in order that not too many tenants were classified under the Rent Act 1977.

    • Defined a lease (as opposed to a licence) as: a grant of exclusive possession of the property for a fixed or periodic term at a rent.

Defining Proprietary Rights

• Lord Wilberforce in National Provincial Bank v Ainsworth

  • Lord Wilberforce’s definition: “Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability”

• Not enough that there is a potential property right, it must have been created with proper formality.

Legal vs Equitible Interests

• NB Do not think that Equitable rights are weaker - while this used to be the case it is no longer the case in modern land law. Mostly just depends on formalities.

• Only certain things are capable of being legal (LPA 1925)

  • Freeholds (1(1)(a))

  • Leaseholds (1(1)(b))

  • Easements and Profits (1(2)(a))

  • Mortgages (1(2)(c))

• Every other type of property right can only ever be equitable (s.1(3) LPA 1925)

  • Options (option to purchase)

  • Covenants

  • Estoppel

  • Equitable Co-ownership

Legal Right Creations require a deed

• A deed declares it is a deed, is signed as a deed, and is witnessed as a deed.

• It must (generally) also be registered substantively as a deed under s.25-26 LRA 2002

• Exceptions:

  • A legal lease for less than 7 years requires a deed but need not be registered (s.52(1) LPA 25)

  • A short legal lease (3 years or fewer) then there is no deed needed and no registration needed. (s.52 & s.54 LPA 1925)

  • Implied legal easements

  • Adverse posession

Equitable Rights must also be created in a...