Land Law: the impact on the Architect
Stephen Brookhouse
Land Law
• Objective of this session:
• Explain the key areas that you need to know for Part 3 and for
architectural practice
• Overview of the relevant concepts in English law
• How they apply to land law
• Give you some definitions
• Set out the actions that you need to take…
• In the context of advice to clients and design considerations
• ….and when
• Consider what happens when it goes wrong
Concepts: English Law- Land Law
• Sources of English Law:
• Common law, statutes, EU laws, Human Rights Law
• Ownership of property requires a transaction – contract law
• Transactions are recorded or ‘registered’ with Land Registry
• Obligations (rights and burdens) arise out of the contract
• Tort law – trespass and nuisance
• Rights that arise out of tort law
• Equity - restrictive covenants; injunctions
Land as a legal concept: definitions
• Physical sense:
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Ground, soil or earth
Buildings
Fixtures
Mines and minerals
• Extends to:
• The surface boundary
• The ‘depths of the earth’
• Airspace above – within a reasonable distance
Land law- Property law
• Property: ‘anything that can be owned’
• Property : real (land) and personal (all other kinds)
• Tangible: a physical existence: land (freehold)and chattles (any
property other than freehold land) and intangible: (intellectual
property, for example)
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Ownership:
Freehold – virtually infinite
Example: freehold apartment block, freehold site
Leasehold – fixed term: e.g.. 20 years, 99 years, 999 years
Example: leasehold apartment in the block (99 years)
Ownership and Possession
• Ownership:
• ‘the exclusive right to use, possess, and dispose of property subject
only to the rights of persons having a superior interest and to any
restrictions on the owner’s rights imposed by agreement with or by
act of third parties or by operation of the law’
• A sale and a purchase – a contract
• Ownership confers enjoyment of a number of rights over the
property and also burdens or obligations
• The owner can sell or give away some of the rights
• For example: a tenancy or a licence
• Burdens and obligations remain
Rights
• To enjoy the benefits conferred by the contract, common law and
by statute:
• Privacy
• nuisance, noise
• Right of support
• Intangible rights:
• Rights over other land
• Restrictions over use and use of other land
Ownership and possession
• Possession:
• ‘actual control of property combined with the intention to use it,
rightly or wrongly, as one’s own.’
• Freehold and leasehold ownership
• Also – JCT construction contracts: the contractor ‘takes possession’
of the site for the duration of the works – but does not own it.
Possession
• What happens if you do not own the land?
• 2. Obtain a Licence:
• Permission to enter or occupy a person’s land for an agreed purpose
• Example:
• The contractor takes possession of the site
• Possession (by the contractor) may be delayed for a fixed period under
SBC11 (for a period) – mainly due to the Employer not ‘owning’ the land.
• Possession by the Employer may be delayed by extending the Completion
Date (by an extension of time).
Property and Land: summary
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Ownership attracts rights and obligations:
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Rights:
Common law: for example, right of support
Contract: ‘Title’; ‘conditions’: registered with Land Registry
intangible rights including rights over other land (easements and wayleaves) but also restrictions on use (restrictive
covenants)
Tort: trespass,
Equity: enjoyment of rights
Statute: Land Registration Act 1925; Land Registration Act 2002; Land Charges Act 1972
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Obligations:
Contract: conditions: obligations to others: for example, access
Tort: nuisance
Statute: Defective Premises Act, Health and Safety;
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Rights extend:
Above: air and space
On the surface: buildings, parts of buildings, or similar structures; garden plants and statues
Below: minerals, etc.
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Statute may ‘step in’ over rights: Town planning legislation, Listed Building and Conservation Area legislation, Party Wall, etc.
Act, Environmental protection, Noise Abatement , etc.
What are these rights and obligations?
• Easements and restrictive covenants – relate directly to the land
regardless of ownership
• They remain therefore when ownership changes
• Easements
• ‘Rights that one owner has over the land of another.’
• Restrictive covenants
• ‘a binding obligation that restricts an owner in the use and
enjoyment of that land.’
• Licences and wayleaves
• A contractual obligation (person-to-person’)
Easements
• Essentials:
• Creates rights (dominant) that allow or prevent the doing of
‘something’ on another ((sub)servient) piece of land
• Dominant – gets the benefit and
• (Sub)servient - the land burdened by the benefit
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Examples:
Rights of way
Rights of support
Rights of light
Right to to water
Easements
• Positive:
• A right to do something
• Example: the right to cross my land in order to reach the main road
• Negative:
• Imposes a restriction
• Example: a right to light - will restrict development
Easements
• How are they created?
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Statute: Acts of Parliament & local Acts
Express grant by deed (or informally)
Implied grant - (complex)
Presumed grant – presumed from long enjoyment of the right
Prescription – right to light: 20 years without interruption the right
becomes absolute
Easements
• How are they released?
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1. release:
Express - by deed
Implied – by abandoning, for example
Change of circumstance – where impractical
2. ‘seisin’ – unity: plots of land come into the same hands
3. statute
Restrictive Covenants
• ‘A promise’
• Impose a restriction on the land regardless of ownership
• Pre-date planning legislation
• Confers a benefit on others who do not own the land
• May prohibit or restrict building on the site or extending
buildings: Leicester Square, Portland Place; height limited to x
metres
• May prohibit or restrict uses: ‘no use other than residential’
• May prohibit or restrict activities: ‘no singing or dancing’; no
washing in the front garden’; ‘no fences’.
• Over-ride planning permission
Restrictive Covenants
• ‘The most common form of covenant that self-builders are likely to come
across is where a vendor imposes a covenant within the contract for sale
and eventual title restricting the right of any developers of the land to
have, say, windows in an elevation that overlooks their property. They may
even limit the property to a single storey.
• Even if the planners want you to have windows looking towards the
vendor’s house or require two storeys – and even if they give planning
permission to do so – then the covenant would rule. Planning permission
says that you may build; it does not say that you can, and the existence of
planning permission does nothing to remove the legal impediment’.
Restrictive Covenants
• ‘Details of any covenants or burdens will be contained within the
information held by the Land Registry or the Registers of Scotland.
Some covenants may be very old and the purposes for which they
were originally imposed may have long since ceased to be apparent
or even reasonable. Some covenants may be fresh and imposed by
the immediate vendors of the plot.
• In all cases, no matter how old they are, covenants cannot be
removed or disregarded unless they are extinguished by
agreement, which usually involves some form of payment or an
application to the Lands Tribunal — a long and costly undertaking.
• Covenants can be very obscure. A cottage that was recently for sale
in Essex possessed a covenant that restricted any occupiers from
salting pork in the lounge. This was a prime example of a defunct
covenant that the Lands Tribunal would be likely to strike down’.
Licences
• ‘A licence is a permission to do something that otherwise would be
unlawful’.
• It prevents what otherwise would be a tort – i.e.. Trespass
• Not transferable
• An overlap with easements
• ‘Bare’
• Coupled with an interest – right of access to hunt, fish etc.
• Contractual: granted by contract and a fee
Wayleaves
• ‘Q. What is the difference between a wayleave and an easement?
• A. A wayleave is a form of licence, a contract between two parties
that provides for one party’s rights across land of the other party.
• An easement is similar to a wayleave in respect of the provisions
made for each party but is executed as a Deed. This means that the
easement is registered against your property Title at HM Land
Registry and is usually permanently affixed to the land’.
Wayleaves
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‘Q. What provisions are typically included in a Wayleave
Agreement/easement/lease?
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A. Typically, and in addition to identifying the parties and the land affected, the
rights granted [to us] include:
· To install (place) and keep installed the electric line(s)
· To use, inspect maintain adjust repair replace alter renew and remove the line(s)
· To cut lop trim or fell trees/hedges
· To enter the land at all reasonable times
We also commit to minimising any damage to the property arising out of the
exercise of the rights and to make good or pay compensation for any damage that
is done, and provision is made for payment to the grantor.
Wayleaves contain a determination (termination) clause but easements are
permanent’.
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Source: Northern Powergrid
Where do you find these and what do you do?
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Easements and restrictive covenants relate directly to the land.
Therefore they appear on the ‘title’ held by the Land Registry
Desktop search
Small fee
• Wayleaves? A license or contract between parties so may not
appear.
• ‘Over-riding interests’ (a catch-all phrase)
What are the architect’s obligations?
• Your obligations are set out in your contract: your appointment
• Land registry searches are normally the responsibility of the client’s
solicitors
• (Normally there is far more at stake that is beyond our knowledge or
competence)
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The Architect (perhaps) has a duty to alert client to perceived normal risks
If you give advice then that can be reasonably relied upon
If you conduct searches then do you take responsibility?
It is reasonable to expect that you take responsibility for your actions.
Therefore standard advice alerting clients to possible risks is essential
Desktop study: drains
Desktop study
Gas, power, water, drainage
Common law: law of torts
• Tort relates to the infringement of common law rights
• Ownership not required (but does not exclude owners)
• Tort of Nuisance
• Tort of Trespass
• Tort of Negligence may be relevant generally
• Nuisance – ‘substances escaping onto land from adjoining land’
• In construction terms: there are significant risks
• Health warning for architects: not all torts are the same and rights
vary considerably
Trespass
Trespass
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Trespass a civil wrong – a tort
Infringement of a right
How will this apply to architecture?
Trespassing on land:
building in the wrong place
Unlawful access
Boundaries need to be checked
• Trespassing below land
• Trespassing above land
Nuisance and Trespass
• Remedies?
• Injunction: an equitable (common law) solution that prevents
someone from doing something
• Nuisance:
• Stop building
• Noise from site (a nuisance)
• Trespass
• Stop excavating (below)
• Stop crane movement
• Negotiate licence with adjoining owners
Summary of actions for the architect
• Risks:
• Easements, Wayleaves and Restrictive Covenants: standard advice
alerting client to risks (where you consider these to be relevant)
• Easements and restrictive covenants relate t the land
• Wayleaves are contracts that may be terminated
• Carry out desktop research and investigations but make sure that it
is not t be relied upon
• When? Early stages of the project: feasibility and briefing
Tort law
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Nuisance:
Generally a contractor responsibility
Trespass:
Check boundaries and ownership
Issues:
Accuracy
Physical boundaries may not relate to ownership
Access (Party Wall, etc. Act 1996)
Beware injunctions for cranes etc.
• When? Early design stages; possibly detailed design (D&B)
Lastly….
• Statutes
• Planning legislation does not over-ride rights and obligations
attached to land title
• Development and use classes
• Wayleaves are supported by utilities legislation (you may not
prevent them being effective)
• Nuisance and noise covered by environmental legislation
• Trespass modified 2012
• Party wall, etc. Act 1996
• EU Directives incorporated into English law and Human Rights Act
1997
Sources
• Land Registry www.landregistryservices.com
• Title register
• Title plan
• National Grid www.nationalgrid.com
• Utilities generally