Land. Ch.

1 ATURE AND SCOPE OF REAL PROPERTY

Origins ie in the feudal reforms by William the conqueror after 1066 but a lot has changed.

First great reform was LPA 1925, LRA 1925 (now LRA 2002), TA 1925, Admin. Of Estates Act 1925 and
Land charges Act 1925 (now LCA 1972). But a lot has changed since then due to new situations,
inventive judicial decisions etc.

LRA 2002 had a controversial change, e-conveyancing which still has not been brought into force and its
still unclear whether full e conveyancing will be enforced.

NATURE AND SCOPE OF THE LAW OF REAL PROPERTY:

LAND def. in LPA 1925: Land includes:

- Land of any tenure

- Mines and minerals
- Buildings and other corporeal hereditaments
- Easement, right, privilege or benefit in, over or derived from land

Easement: e.g. right to walk across neighbours driveway. Charge: e.g. mortgage. Restrictive Covenant:
right control the use to which a neighbor may put his land. Incorporeail hereditament: right to take sth
from others land, e.g. a fish.

So as can be seen, land include both the tangible and the intangible and land law is the stude of the
creation, transfer, opration and termination of these rights and the manner in which they affect the use
and enjoyment of the physical asset.

Land law is diff from other laws due to the fact that it affects the proprietary rights as compared with
the personaly rights dealt w by other laws i.e. the law affects the land itself so that anyone who comes
in the possession or occupation of that land will have certain benefits or face some obligations/ burdens.
E.g. A leases land to B. A then sells to X. B can enforces his lease right against X even though X had no
part in the original creation of the right.

Right in land vs. right to use land (e.g. a licence) This distinction is imp. As if a license is considered
proprietary then the owners usage will be restricted and the value wil decreause as the new owner
would have to be bound by the license.

So, how do we search for the PROPRIETARY character of rights?

To answer, we must look at the def. of intereset in land

National Provintial Bank v Ainsworth: Q: is the right of a wife to live in the house of former hubby
proprietary? If yes, then it binds third party like the bank from claiming posession under mortgage. But if
merely personal then she can only enforce it against husband.

HOL: WILBERFORCE:to be a proprietary right it myst be DEFINABLE, IDENTIFIABLE BY 3Ps, CAPABLE IN

NATURE OF ASSUMPTION BY 3Ps, AND HAS SOME DEGREE OF STABILITY AND PERMENANCE.
Criticisms of this fourfold test:

1/ The four requirements are open ended; how definable should it be. and circular: as only if a right is
already proprietary is it capable of assumption by 3Ps. So the def. is weak but does give crucial
indication towards what a propruietary right is. One things for sure: Prop rights havfe a certain quality
other than merely being connected w the use or enjoyment of land and it is this quality that makes them
fit to endure beyond changed in the ownership or occupation of land. We shall look at the wealth of
case law to find out our answer.

TYOES OF PROPRIETARY RITGHT:

ESTATES IN LAND: right to use and control land or owner ship of land for a slipce of time ( depending on
nature of state) only the crown owns truly all land. Types of estate can be seen below:

1/ fee simple / freehold: Right to use and enjoy the land for the duration of the life of grantee and that
of his successors and heirs. Its freely transferable/ alieanable during the life of estate owner (by gift or
sale) or on his death and each new estate owner enjoys the same rights as listed above. The fee simple
estate can survive through generations indefinitely but one scenario shows its true nature when the
ownership goes to the crown: if current estate owner transfer to no one during life and has no will/ next
of kin to inherit under intestate, estate reverts back to corwn. This mostly occurs with legal persons
(plcs). An estate can be legal or equitable, the latter arises in special circumstances like coownership.

2/THE LEASEHOLD ESTATE: tight to use and enjoy the land exclusively as owner for a stated period of
time. Ref. to as term of years even if term is < year. This type of estate can be carved out of any other
estate (including itself) given that its term is fixed at lss than the estate out of which it is carved. E.g.
leashold estate of 999 years out of a fee simple. Can be legal or equitable, latter occurs in residentials
context more.

3/The Fee TAIL: originally an estete. Now better termed by lpa 1925 as an interest in another persons
land. Permits its owner the use of land for the duration of his life and that of his LINEAL descendan. At
last lineal descendants death, the land reverts back to the person entitled to the estate in simple or to
the crown if there isnt any.

Since jan 1997 no new entails may be created per sched. 1 of Trusts of Land and Appointment of
Trustees Act 1996 (TOLATA). Its possible to convert existing entails into estates by a process called
barring the entail but where it still exists, the fee tail is an equitable interest s.1 LPA 1925.

THE LIFE INTEREST: or life estete, gives the holder the right to use and enjoy the land till death, then it
revets back to owner who is usually a long lease holder or owner. Holder of it wrongly referred to as life
tenant even if it has nothing to do w a lease. Just like fee tail, Is an equitable int. LPA 1925 s.1. If a life
tenant sells his right to Y then Ys estate will only last as long as X is alive.

INTEREST IN LAND. E.g. mortgage, rest. Cov. Easement etc. can be sold. Even as part of benifitted land.

THE LEGAL OR EQUITABLE QUALITY OF PROPRIETARY RIGHTS: to determine whether a right is either of
the two, we must look at its quality as opposed to its content. Although, this debate of whether a
proprietary right is legal or equitable has become less impt. Due to lPA 1925 and recent e conveyancing
but to properly get modern land law, we must get the distinc. Bw eq. and legal rights and the
significance of that distinction

The origins of dist. Bw legal and equitable rights. To see if a right is either 2 things must be observed: 1/
is the right capable of existing as legal or equitable right 2/ what manner has the right come into
existence through, that which results in legal or that which results in equitable rights?

Thus, some rights may only be equitable and some either legal or equitable, depending on their creation
method. None are only legal.

IS THE ESTATE OR INTEREST CAPABLE OF BEING EITHER LEGAL OR EQUITABLE?

S.1 LPA 1925:` IDs the rights that may be legal as: ESTATES= fee simple absolute in possession (that
which gives immediate possession of the land) and lease (term of years absolute)

INTERESTS=easement, rentcharge, charge by way of legal mortgage and rights of entry.

All other estates, ints and charges in/ over land are equitable interests. The act only says that the listed
rights and intersts MAY be legal, not MUST.

Lets look at the MANNER OF CREATION OF THE LEGAL RIGHT: whether a right is legal or eq. depends
generally on the manner in which it was created and whether the relevant formality was satisfied; if no
formality then its equitable.

Reqs. For a right to be legal: 1/ Must have been created using a Deed which is executed and witnessed.
Eagle Star Insurance Company v. Green: Deed=written doc of a special kind which goes beyond a mere
written contract. Sometimes, prop. Rights can be legal wo deed as in the shortlease exception lease
under 3 yrs req no deed. S. 52(2)(d) and s. 54(2) LPA another example is where an easement arises due
to prescription (long use)

2/ in addition to a deed, certain legal estates and ints must be registered in the manner req by LRA
2002 says s.7 of and s. 27 of the ACT. Briefly they require: - all potential freeholds must be registered
as a title; -those over 7 years dyration must be reg as a title (sometimes less that 7 may also req reg as
title.) all potential legal mortgages must be registered against the title of the freehold or leasehold
they affect; - all potential expressly created legal easements must be registered against the title of the
freehold or leaseholp land they affect, If so created on or after 13 oct 2003.

Reqs. For a prop right to be equitable: it has the potential to be equitable for 3 reasons:

1/ excluded ab initio from the definitions given in s1 LPA 1925

2/ was w in s. 1 but no deed used when required.

3/ even has deed but not registered where required.

Remember that even equitable rights must have a legal footing and so some formality is required: they
must be written in an instrument ssigned by creator of the equitable right (as req by s. 53 LPA) or a
detailed contract signed by or on behalf of parties (as req by s. 2 LPMPA 1989).

If these reqs are not fulfilled, the right will be void as a property right and will be merely personal:
against the person. It would then become a license (generic name given to rights to use land)
Murray v Guinnes: a contract can be saved by separating invalid clause.

In exceptional circum. Verbal agreements can create eq rights s. 53 (2) lpa 1925 to prevent
unconscionability Taylor Fasions v Liverpool Victoria Trustees.

Worth noting: proprietary rights before LPMPA 1989 could be created orally w/o pleading estoppel or
implied trust provided the oral contract was supported by some act of part performance In pursuit of
the right as in Thatcher v Douglas 1996