Liverpool John Moores University

School of the Built Environment

LAW: MODULE DOCUMENT AND WORKBOOK
PART 3: PROPERTY LAW

Land Law 1
Land Law 1.1
At the end of this section you should be able to:
- Interpret the defnition of real property
- Understand the differences between
estates in land
- Differentiate between the two systems of
conveyancing
- Appreciate the differences between estates
and interests in land
Land Law 1.1
Introduction to Land Law 1.1
1.1.1
The term Law of Real Property is usually known as
Land Law. Land Law is concerned with the rights,
interests and obligations which can exist over land
and buildings. The complexity of this area is brought
about by the nature of land itself and by historical
factors. Land is permanent property and this lends
itself to the creation of concurrent and consecutive
interests. The foundations of Land Law were land
down in Medieval times. The law of real property
distinguishes it from personal property (ie chattels
or moveable objects) and intellectual property (ie
intangible property such as copyrights, patents etc).
Introduction to Land Law 1.1
1.1.2
The following is an example of the types of interests
that can be found in land law:
Applehouse may be owned by A - (Freehold).
Let by A to B (Leaseholder) - Leasehold.
Sub-let by B to B (Sub-tenant) - Leasehold.
Mortgage by A to D.
May be subject to a restrictive covenant for the beneft
of X.
Y may have an easement to walk cattle across the land.
Note that this can be contrasted with personal
property which is normally under absolute ownership.
Fee Simple - Freehold 1.2
1.2.1
All land ultimately belongs to the Crown so that the terms
freehold and leasehold relate to the ownership of rights
in relation to land rather than the ownership of the land
itself.
1.2.2
In 1925 the ancient system of rights and obligations in land
was modernised by the following Acts of Parliament:
(a) The Law of Property Act 1925.
(b) The Settled Land Act 1925.
(c) The Land Changes Act 1925.
(d) The Land Registration Act 1925.
(e) The Administration of Estates Act 1925.
(f) The Trustee Act 1925.
The main purposes for the 1925 property legislation were
(i) to abolish anachronisms; (ii) to assimilate the law of
real property with the law of personal property so as to
make certain rules applicable to land which had previously
only applied to personal property and (iii) to simplify
conveyancing by reducing the number of legal estates in
land to two and introducing a system of registration of title
in land. Changes were made in the Land Registration Act
2002.
Fee Simple - Freehold 1.2
1.2.3
There are only two legal estates namely:
(a) the fee simple absolute in possession
- freehold
(b) the term of years absolute
- leasehold
1.2.4
The fee simple absolute in possession is the technical term
for freehold. The word fee is a technical one meaning
an estate of inheritance which is an estate which is
capable of passing on the death of a tenant to his heirs.
Absolute means that the grant is an unqualifed one
and in possession means that the owner is entitled to
physical possession immediately. The freehold owner may
dispose of his interest or grant any interest to others and
may exclude all other persons from his land. However,
minerals below ground such a oil, coal or gas are the
property of the state. The freehold owner is, however,
subject to the statutory controls on land use, for example,
(a) Town and Country Planning legislation.
(b) Landlord and Tenant legislation.
(c) Environmental Law Legislation.
(d) Public Health legislation.
HMSO - Search for Town and
Country Planing Act
1.3.1
A term of years absolute exists for a defnite
period and is commonly referred to as leasehold.
A landlord would grant to the tenant exclusive
possession of property which the tenant can enjoy
for a fxed period or for a periodic length, eg, weekly
tenant, monthly tenant. Exclusive possession means
that the tenant has the right to exclude all other
persons from the property including the landlord.
Term of Years Absolute - Leasehold 1.3
Case Example 36:
Street
v
Mountford
(1985)
The appellant had been occupying a
single furnished room under a licence
agreement and, by agreement with the
landlord extended her occupation
to the whole of the top foor under
an exclusive residential licence. This
agreement contained several conditions
which stated, inter alia, that the licence
was personal, placed an obligation
upon the occupier to pay for damages
and breakages and prohibited the
keeping of children and pets. At the
bottom of the agreement the appellant
signed a declaration that I understand
and accept that a licence in the above
form does not and is not intended to
give me a tenancy protected by the
Rent Acts. The House of Lords held
that if residential accommodation
is granted for a term at a rent with
exclusive possession, the landlord
providing neither attendance nor
services, the grant is a tenancy. Any
express reservation to the landlord
of limited rights to enter and view the
state of the premises and to repair and
maintain the premises only serves to
emphasise the fact that the grantee is
Term of Years Absolute - Leasehold 1.3
Case Example 36:
Street
v
Mountford
(1985)
continued
entitled to exclusive possession and
is a tenant. Once it is conceded that
exclusive possession has been granted,
it is unnecessary to analyse minutely
the detailed rights and obligations
contained in the agreement under
consideration. In considering whether
an agreement to occupy residential
accommodation created a tenancy
the application of the Rent Act was
irrelevant.
Exclusive possession means that the
tenant has the right to exclude all other
persons from the property even the
landlord.
Term of Years Absolute - Leasehold 1.3
EGi - Search for Street v
Mountford (1985)
Lexis Nexis - Search for Street
v Mountford
Term of Years Absolute - Leasehold 1.3
1.3.2
The formalities required for the creation of a lease may be summarised as follows:
(a) must generally be made by deed under section 52 of the Law of Property Act 1925;
(b) unless they are for a term of less than three years taking effect in possession at the best rent
which can reasonably be obtained without taking a fne;
(c) a deed must show clearly on its fact that it is a document which is intended to be a deed, must
be signed in the presence of a witness and the maker of the deed must show an intent of being
bound; Law of Property (Miscellaneous Provisions) Act 1989.
1.3.3
A lease made in writing when it should have been made by deed may amount to an equitable lease.
Case Example 37:
Walsh
v
Lonsdale
(1882)
The parties entered into a written
agreement to create a legal lease.
The agreement contained a term that
the proposed lease should include a
clause giving the landlord the right to
give notice to the tenant demanding
payment in advance of 1 years
rental. The tenant took possession
of the premises without the lease
being created, and subsequently the
landlord tried to demand an advance
rental, which the tenant would not pay.
Distress was then levied by the landlord
on the premises whereupon the tenant
sued the landlord claiming that the
distress was illegal. The court held that
a legal lease existed on the agreement
for the lease being signed and the
landlord succeeded in the action.
Term of Years Absolute - Leasehold 1.3
Legal Interests in Land 1.4
1.4.1
As a result of the property legislation of 1925 only fve legal interests can now exist in land and these
are:
(a) an easement, right or privilege for an interest equivalent to a freehold or leasehold;
(b) a rent charge in possession which is either perpetual or for a term of year absolute;
(c) a legal charge;
(d) land tax or other charge;
(e) rights of entry over or in respect of a term of years absolute.
Further reading 1.5
Card: Chapter 31.
Galbraith: Chapter 11.