Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
The law of the land comprises a crystallized expression of values cast in sharp relief against the
landscape of the law. (Gray and Gray, Elements of Land Law) What key values or aims does English
Land Law promote and evaluate the balance struck by them. Provide illustrations of relevant cases and
statute in this regard.
The English Land Law is one of the oldest branches found in the doctrine of common law. It has
its origins in the feudal reforms imposed on England by William the Conqueror during the
Norman Conquest after 1066.1 The Conquest brought with it a sharp distinction which still
exists, technically between land and chattels. Chattels are things that can be owned; land cannot
be owned, except by the monarch. If a private citizen cannot 'own' land, what is it that we really
do own when we think of ourselves as 'land-owners'? Technically, we own what lawyers call
an estate in land.2 Although 'estate' is a general term with an everyday meaning, in this context it
has a specialist interpretation. An estate in land is some package of rights over land, and
responsibilities accompanying those rights. These rights, by definition, fall short of absolute
ownership, that is, they held their grants of land directly from the king.3 These rights included
the right to enjoy an income from the agricultural production of the land, and were accompanied
by certain obligations to the king. The estate defined the duration of the rights enjoyed by its
owner, and the accompanying responsibilities. Consequently, the tenant-in-chief would create
lesser tenancies out of his larger estate, and grant them to people who were prepared to accept
obligations towards him.
1
Bray, Judith. Unlocking Land Law, 3rd ed. Abingdon: Hodder Education, 2010
2
Dixon, Martin. Modern Land Law, 8th ed. Oxon: Routledge, 2012.
3
Ann-Mackenzie, Judith & Phillips, Mary. Textbook on Land Law, 13th ed. Great Clarendon Street: Oxford University Press, 2010.
1
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
These sub-tenants could then create their own sub-sub-tenancies, and so on. This process of 'subinfeudation' is characteristic of the feudal system of land ownership common at that time; each
tenant of land took a proportion of the income of the land from his sub-tenants, and rendered his
own proportion to his overlord.4 Thus any given patch of earth would be subject to a whole chain
of nested tenancies, from the king at the top to the horny-handed sons of toil at the bottom. Subinfeudation was abolished in the 13th century, so that no further tenurial relationships could be
created, except by the king. As a result, land-owners issued land rights to their sub-tenants by
granting certain estates packages of ownership rights rather than creating new tenancies with
their accompanying feudal obligations. The estate defined the duration of the rights enjoyed by
its owner, and the accompanying responsibilities.
Each of the tenants and sub-tenants of a particular piece of land might be holding his estate on
different terms. For example, person A might grant to person B an 'estate in fee simple' in return
for the rendering of certain monies and services. 'Fee simple' meant that the estate owned by B
could be inherited by his heirs, according to the standard rules of inheritance. 5 Another mode of
ownership was the 'estate for life'.6 Here the sub-tenant would have the right to enjoy the
products of the land for the duration of his life, after which the land would revert to the grantor.
As the feudal era came to a decisive end in the industrial revolution, and the capitalist era took
hold, the process of settlement-resettlement became less useful. Land began to be seen not so
much as a measure of one's feudal status, but as a thing to invest and make money and temporary
rights over land came to be recognized.
4
Lees, Emma. "Registration: Rectification, Indemnity and Mistake and the Land Registration Act 2002." The Modern Law
Review 76.1 (2013): 62-82.
5
Ibid. 3
2
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
The statutory definition of ‘Land’ as defined in the Law of Property Act 1925 is found under
Section 205 (1) (ix)7 whereby stating that “land includes land of any tenure, and mines and
minerals, whether or not held apart from the surface, buildings (whether the division is
horizontal, vertical or made in any other way) and other corporeal hereditaments also a manor,
an advowson, a rent and other incorporeal hereditaments; and easements, right, privilege, or
benefit, in, over or derived from land… and mines and minerals include any strata or seam of
minerals or substances in or under any land, and power of working and getting the same.”
Within the said act, two forms of rights are discovered, corporeal and incorporeal hereditaments.
Corporeal hereditaments are rights that have some or real tangible quality.8 They would include
anything growing on or found under the land whereas incorporeal hereditaments are intangible
rights in land. It cannot be seen yet the effect can be felt by the owner of the said plot of land.
These rights which include easements, mortgages, leases and restrictive covenants will affect the
exact nature as to how the land is used and enjoyed. The context of estates in land significantly
changed from and after the Law of Property Act 1925 whereby the number of legal estates was
reduced to just two: an estate in fee simple absolute in possession (freehold) and an estate for a
term of year’s absolute (leasehold).9 Other proprietary land therefore are said to be equitable
only under Section 1(3) of the 1925 act which include the likes of the rights of a beneficiary
under a trust of land, restrictive covenants, an interest under a contract to create a legal estate or
interest in land and that the interests become equitable as a result of statutory reform including
those that is not within Section (1) or Section 1(2).
7
8
Bray, Judith. Unlocking Land Law, 3rd ed. Abingdon: Hodder Education, 2010
Ann-Mackenzie, Judith & Phillips, Mary. Textbook on Land Law, 13th ed. Great Clarendon Street: Oxford University Press, 2010.
9
Analysis of Land Law, March 17th 2013. <http://www.lawteacher.net/property-trusts/essays/critically-analysethe-rationale-law-essays.php>
3
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
However with this arose two fundamental problems in the transfer of land, the complication of
proving title to the land you were buying and finding out whether other people hand rights in the
land you were buying. As a result, extensive reforms were introduced and six different Acts were
passed in 1925 which fundamentally changed the shape of land law in England and Wales. The
Land Registration Act 1925 (LRA 1925)10 introduced a system of registration of title to replace
the unregistered system of conveyancing. The main principle established was the idea that every
title should be registered so there would be no need to actually prove good title each time the
property changed hands. Where title remained unregistered because it was outside the area of
compulsory registration, a system of equitable interests in land was introduced in the Land
Charges Act (LCA) 1925.11 Registration under the said act is made by the person claiming the
right and is made against the name of the owner and not the property. This has led to a number of
problems in registration, search and transfer of property.12 Registration under the wrong name
gives the courts a problem because a later purchaser may be given a clear certificate showing no
land charges against the land itself. Next, searches against incorrect names provide us the general
rule that a purchaser who claims a search against an incorrect name will be bound by and charges
that are registered against the correct version of the owner’s name. There is also the issue that the
purchaser may not know the names of all previous owners of the land. On any sale of property
with unregistered title, all charges properly registered will continue to be binding on the land and
the problem is that should the previous names be unknown then potential charges against their
names could therefore be binding on the land.
10
Dixon, Martin. Modern Land Law, 8th ed. Oxon: Routledge, 2012.
11
Ibid. 7
12
Analysis of Land Law, March 17th 2013. <http://www.lawteacher.net/property-trusts/essays/critically-analyse-the-rationalelaw-essays.php>
4
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
The growth of common law and equity gave rise too many a solution and distinct problems and
indirectly led to the development of trusts we have come to know today. The trust involves three
sets of interests involving the settler, the trustee and the beneficiary co-existing from the initial
point a settler who has absolute ownership of his property but decides that he wants someone
else to benefit eventually from all or some of his property.13 As it is not immediate, it is placed in
the hands of a trustee who owns the property on behalf of the beneficiary until such time the
beneficiary who has personal rights to enforce the trustee to act on his behalf. An important
distinction must be made here whereby the legal interest of the property remains in the settler,
the beneficiary merely holding an equitable right.
This then leads us to the doctrine of implied trusts. Implied trusts can be split into two categories,
resulting and constructive trusts. These trusts are not deliberately imposed by the settler but arise
by implication of law. It is to be noted that under Section 53(2) of the Law of Property Act 1925,
these trusts do not require writing or any formality for their creation.14 In detail, resulting trusts
are imposed because of the circumstances such as where a partner to a relationship contributes to
the purchase of the property but is not the joint owner; the law will give that person a share in
equity. On the other hand, constructive trusts are imposed by courts because it would be
‘unconscionable’ for the owner of the property to hold that property for them-self if there has
been an agreement for a share of the property to be given in exchange for services rendered.
13
Analysis of Land Law, March 17th 2013. <http://www.lawteacher.net/property-trusts/essays/critically-analyse-therationale-law-essays.php>
14
Dixon, Martin. Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002: A Theory of
Unconscionability.
5
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
Constructive trusts, under Section 53(2) of the Law of Property Act 192515, do not require any
particular formalities on creation, unlike express trusts. This is further depicted in the case
of [Westdeutsche Landesbank v Islington London Borough Council]16, where Lord BrowneWilkinson wrote that "since the equitable jurisdiction to enforce trusts depends upon the
conscience of the holder of the legal interest being affected, he cannot be a trustee of the property
if and so long as he is ignorant of the facts alleged to affect his conscience". When the owner of
property deals with it in such a way as to deny or impede the rights of some other person over
that property, the courts will order that owner to hold it on constructive trust. For trusts of real
property, constructive trusts may arise in one of three situations. First, when the parties form an
agreement to buy the land, or show "common intention" by jointly contributing to the price or
mortgage of a property, as in [Lloyds Bank plc v Rosset.]17 Second, when a contract to transfer
rights is agreed to, the equitable interest is automatically transferred, something that also applies
to personal property.
Third, that a constructive trust may be created where there are several parties interested in
commercially exploiting land, and some refrain from doing so due to an agreement with the
defendant. In the case of [Banner Homes Group plc v Luff Development Ltd]18, it was decided
that this principle applies even when no binding contract has been signed, and the claimant has
refrained due to ongoing negotiations with the defendant. Another "more contentious" form of
constructive trust is in a situation where the claimant has "done everything necessary".
15
Pawlowski, Mark & Brown, James. “Mere Equities and Third Parties in Leasehold Law”. Landlord and Tenant Review 14.3
2010 (100-104).
16
Land Law References and Relevant Cases, March 16th, 2013. <http://www.lawteacher.net/land-law/cases/landlawcases.php
17
Ibid 16.
Ibid. 16
18
6
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
Where the owner of property intends to transfer property to another completes their side of the
transfer and the transfer then fails, this property will be held on constructive trust as in [Re
Rose]19. In relation to personal property, a constructive trust will be created over a fund created
to protect pre-payments to a company in the event of that company going into insolvency.
Proprietary estoppel is the third principle mechanism to acquire rights over property, seen
particularly in the case of land whereby when a person has been given a clear assurance, it was
reasonable of them to rely on the assurance, and they have acted to their detriment. Proprietary
estoppel case law has, however, divided on the question of what kind of assurance and what kind
of reliance must be present. In [Cobbe v Yeoman's Row Management Ltd]20, a property
developer claimed an interest in a group of Knightsbridge flats after his expense in obtaining
council planning permission.
Mr. Cobbe had made an oral agreement with the flat owner, Mrs. Lisle-Mainwaring, to get the
flats at £12m, but once permission was obtained, the owner broke her oral promise. Even so, in
the House of Lords Mr. Cobbe failed in his claim for anything more than the expense (£150,000)
of getting the planning, because in this commercial context it was clear that formal deeds were
needed for completion of any deal. The tendency of the cases is therefore to recognize claims
more in the domestic context, which less formal assurances are common, and less so in the
commercial context, where formality is normal. In [Jennings v Rice, Robert Walker],21
LJ tackled the issue by emphasizing that the purpose of the court's jurisdiction was to avoid an
unconscionable result, and to ensure that a remedy was based on proportionality.
19
Bray, Judith. Unlocking Land Law, 3rd ed. Abingdon: Hodder Education, 2010.
20
Land Law References and Relevant Cases, March 16th, 2013. <http://www.lawteacher.net/land-law/cases/landlawcases.php>
21
Ibid. 20
7
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
In relation to third parties, the remedy for proprietary estoppel has been confirmed to bind others
by the Section 116 of the Land Registration Act 2002. The difference then between legal and
equitable interests in property is seen as the distinguishing of an owner of legal estate can deal
with the estate at law and the owner of an equitable estate only has rights to deal in equitable
estate. Another important difference between legal and equitable rights is the way such rights are
enforceable against a third party. As equity would only enforce rights against certain persons, the
beneficiary could only enforce the trust against the trustee. This is inter-linked with the process
of Overreaching which arises on the sale of property which is held under trust. It occurs when the
purchaser paid to at least two trustees in monies. The occupiers of a property in such a situation
cannot then claim that their occupation of the property is an overriding interest, as the joint
trustees have brought that occupation to a close through the sale of the property.
By purchasing the property from trustees, under Section 2 of the Law of Property Act 1925,22 the
occupation rights of any other party are automatically extinguished. If such a party claims an
overriding interest in the land, that interest is converted by attaching a monetary interest to the
land, a purchase price, and the interest claimed by the party is 'overreached', this conversion is
often referred to as the doctrine of equitable conversion. If only one owner exists, then there is a
risk that a third party could claim occupation, and overreaching cannot apply. The case of
[Williams & Glyn’s Bank v Boland 1981]23 depicts that the overreaching will only apply where
22
Dixon, Martin. Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002: A Theory of
Unconscionability.
23
Land Law References and Relevant Cases, March 16th, 2013. <http://www.lawteacher.net/land-law/cases/landlawcases.php>
8
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
the purchase money is paid over to two trustees whereas in the case of [City of London Building
Society v Flegg]24 overreaching does not apply to trustees exceeding their powers.
Owing to the complications and extensive procedural functions of the previous system and law,
the Land Registration Act 2002 was commissioned into place to solve the current quandary in
relation to land registration. The scheme was designed to create a system in which one register
will disclose all relevant details concerning who owns any piece of land and all the rights and
interests that bind the land.25 The application is made to enter a title on the register which is then
scrupulously checked and verified by the Land Registry. Under the LRA 2002, compulsory
registration was triggered as soon as the purchaser not only sold said property but covers all
dealings regarding said property. The key features of the registration system are firstly, the
mirror principle whereby the Register is held to be accurate and conclusive reflecting ownership
of title and relevant interests affecting the land in question. Secondly, the insurance principles
which if the Registry is found to be inaccurate, it will be rectified and any person affected are
entitled to be paid a sum in compensation. Finally, the curtain principle concerns matters behind
the entries on the Register, such as trusts affecting the land.26 The need for reform of the law on
land registration is articulated in the report of the Law Commission titled ‘Land Registration for
the Twenty-First Century: A Conveyancing Revolution (Law Com No. 254).27 This article
highlights that considerable litigation over the status overriding interests and that it undermined
the whole principle of land registration. Besides that, it was also noted that the legislation was
24
Ibid. 23
25
Bray, Judith. Unlocking Land Law, 3rd ed. Abingdon: Hodder Education, 2010.
26
Dixon, Martin. Modern Land Law, 8th ed. Oxon: Routledge, 2012.
27
Law Commission Report: Land Registration for the Twenty-First Century: A Conveyancing Revolution (Law Com No. 254).
9
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
very complicated with too many conflicting rules. The gap between transfer and registration
often gave rise to uncertainty and modern technology should be used to advance conveyancing.
The objectives of the 2002 Act were laid bare in relation to the problems faced prior and made
specific mention that the Register should be complete and accurate reflection of the state of title
of the land at any given time. At the same time, the number of overriding interests should be
reduced and the law on adverse possession be reformed. The final main objective was one of
modern technology being employed to advance conveyancing. Firstly, in relation to the reforms
in adverse possession the Act provides that anyone who occupies registered land without
permission from the owner and treats it as his own for 10 years is entitled to apply to be
registered as owner, although the system introduced by the Act means that few claims will
succeed.28 In special cases, the adverse possessor may be registered as proprietor without having
to wait for two further years and even if the proprietor objects. These special cases usually arise
because the adverse possessor has some other reason for claiming ownership in addition to their
possession for at least 10 years.
A certain right which is not discoverable by searching the register is what we coin overriding
interest. Overriding interests reduce the reliability and comprehensiveness of the register and
works against the fundamentals of an open registration policy. The LRA 2002 has reduced the
number and scope of overriding interests but the stage is too early to altogether eradicate such
rights. The reform of overriding interests under the LRA 2002 narrows and imposed further
clarification of some categories of interests that remain overriding. Any overriding interests that
28
Dixon, Martin. Modern Land Law, 8th ed. Oxon: Routledge, 2012.
10
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
the buyer has knowledge of or some other interested party knows of should be registered
whereas sellers are under an obligation to disclose any that they are aware of.29
Restrictions have been placed on the enforceability of three categories of overriding interests,
legal easements and profits; rights of people in actual occupation and leases of less than seven
years depending on whether the title was the subject of first registration or a subsequent
registrable disposition for valuable consideration.30 The Act excludes the rights of those who are
not in actual occupation but receiving rents and profits. The occupier’s right will only include the
part of the property that he is actually occupying. In registered land the right will not bind where
the buyer makes enquiries of the occupier and the rights are not disclosed or it is not obvious on
an inspection of the land. Furthermore, leases of seven years or less must be noted on the register
of the title it is coming out of.31 It is to be noted that from October 2013 some overriding
interests that were given a shelf life of ten years since the Act came into effect will lose their
overriding status.32 Overall, it is currently not thought practical to completely do away with
overriding interests for the rights of persons in actual occupation deserve undecided attention to
find a workable solution in the modern world and to make them lose their rights would
contravene Article 1 of the First Protocol of the European Charter of Human Rights (ECHR)33. A
29
Adverse Possession of Registered Land, March 16th, 2013. <http://www.landregistry.gov.uk/professional/guides/practiceguide-4>
30
Pawlowski, Mark & Brown, James. “Mere Equities and Third Parties in Leasehold Law”. Landlord and Tenant Review 14.3
2010 (100-104).
31
Dixon, Martin. Modern Land Law, 8th ed. Oxon: Routledge, 2012.
Bray, Judith. Unlocking Land Law, 3rd ed. Abingdon: Hodder Education, 2010.
33
Lees, Emma. "Registration: Rectification, Indemnity and Mistake and the Land Registration Act 2002." The Modern Law
Review 76.1 (2013): 62-82.
32
11
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
viable solution would be active promotion of the advantages of registering interests could work
in favour of both the purchaser and the beneficiaries of these rights.
Finally, on the matter of modern technology in relation to land law, the idea of e-conveyancing is
to provide an electronic system of dealing with land, that is to create the register that should be a
complete and accurate reflection of the state of the title in the land at any given time so that it is
possible for conveyancing solicitors and the public alike to investigate title of land online with
the absolute minimum of additional conveyancing enquiries and conveyancing inspections. This
was of course predicated on a system of electronic dealings making possible online title and
conveyancing investigation.34 However, the Land Registry has unfortunately been unable to
implement the changes at the speed originally envisaged. With the current economic climate
working against conveyancing firms it is unlikely that the government will push forward econveyancing in the near future. That being said, most Home Information Packs are provided as,
or conveyancing lawyers that produce Home Information Packs do ensure that the Home
Information Packs and PIQs are available mainly in a PDF or digital format.35
34
Bray, Judith. Unlocking Land Law, 3rd ed. Abingdon: Hodder Education, 2010.
Land Law References and Relevant Cases, March 16th, 2013. <http://www.lawteacher.net/land-law/cases/landlawcases.php>
35
12
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912
BIBILIOGRAPHY

Dixon, Martin. Modern Land Law, 8th ed. Oxon: Routledge, 2012.

Bray, Judith. Unlocking Land Law, 3rd ed. Abingdon: Hodder Education, 2010.

Lees, Emma. "Registration: Rectification, Indemnity and Mistake and the Land
Registration Act 2002." The Modern Law Review 76.1 (2013): 62-82.

Dixon, Martin. Proprietary Estoppel and Formalities in Land Law and the Land
Registration Act 2002: A Theory of Unconscionability.

November, Janet & Rendell, Julia. “The Mirror Principle” and the Position of
Unregistered Interests. NZ Law Review 2010 (151-811)

Ann-Mackenzie, Judith & Phillips, Mary. Textbook on Land Law, 13th ed. Great
Clarendon Street: Oxford University Press, 2010.

Pawlowski, Mark & Brown, James. “Mere Equities and Third Parties in Leasehold Law”.
Landlord and Tenant Review 14.3 2010 (100-104).
13
Name: Vivegavalen Vadi Valu
Student ID: UKT-01307/0912

Burns, Fiona. “Adverse Possession and Title by Registration System in Australia and
England”. Melbourne ULR 35 2011 (773-1197).

Law Commission Report: Land Registration for the Twenty-First Century: A
Conveyancing Revolution (Law Com No. 254).

Analysis of Land Law, March 17th 2013. <http://www.lawteacher.net/propertytrusts/essays/critically-analyse-the-rationale-law-essays.php>

Overriding Interests and the Effects of the LRA 2002, March 19th 2013.
<http://www.iconvey.co.uk/articles/overriding-interests-and-the-effect-of-the-2002-landregistration-act-1125573/index.php>

Adverse Possession of Registered Land, March 16th, 2013.
<http://www.landregistry.gov.uk/professional/guides/practice-guide-4>

Overriding Interests Accounted, March 19th, 2013. <http://www.lawteacher.net/landlaw/essays/under-the-land-registration-act-law-essays.php>

Land Law References and Relevant Cases, March 16th, 2013.
<http://www.lawteacher.net/land-law/cases/landlawcases.php>
14