Land Law Introduction

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  • Created by: Nikki
  • Created on: 09-04-16 11:42

Basics

  • land 
    • isn't moveable
    • includes what's above and below as well as on its surface
    • that includes what's permanently fixed to it
  • land is physically and temporally divisible
    • slice of time
  • owning land --> hold major stake in a budle of rights that exists over the land --> but don't necessarily hold all the rights in the land 

Rights

  • basic distinctionb etween owning land and having interests in it
  • right could be an estate or an interest in the land 
  • estate --> ownership --> title holder
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Estates in land

Not ownership of the land as such, but ownership of a period of time in the land

  • allows for concurrent ownership

Nemo dat principle --> I can't grant you a bigger estate in my land than I own (but I can grant you a smaller one)

Estates are rights in rem --> potentially or actually binds anyone seeking to assert a right over the land

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Two types of estate

Freehold

  • largest estate
  • fee simple absolute in possession
  • pertpetual title --> not a fixed date when it comes to an end 

Leasehold

  • slice of time --> freehold owner retains freehold in reversion
  • term of years
  • so long as you didn't contract to prohibit them from doing this, they can also carve out of their estate another leasehold estate
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LPA 1925

Before 1925, existed other types of legal estate in land

  • system of setting up successive title --> doctrine of estates --> complex --> aim of keeping land in families
  • industrialisation --> increased geographical mobility --> requies taht people are able to sell and buy estates more easily 

s1 --> from 1st January 1926 there can only exist two types of estate in land: freehold and leasehold 

  • estates now had to be fixed or perpetual
  • made dealing with land simpler --> more marketable

s52 --> if your transfer of a freehold or leasehold estate to someone else is to be legally recognised, you must normally do it by deed 

Most also have to be registered in Land Register, except -->

  • leases for less than 7 years don't have to be registered to be valid legal estates; leases of less than 3 years don't need to be registered or by deed 
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Interests in land

Can be in personam or in rem

In personam --> only binds the parties to the contract

In rem --> can bind TP dealing with land --> 2 types: legal and equitable rights in rem

Legal rights in rem --> binds everyone

  • some interests can only ever be in personam
  • some intersts become legalrights in rem if you register them
  • some interests become legal rights in rem owing to passage of time (prescription)
  • some interets are legal rights in rem automatically ('overriding interests)

Equitable rights in rem --> 

  • If you create an interest in land and you intend it to bind more than just person who granted it, and the interst was regitrable but you haven't registered it, then it exists as an equitable right in rem
  • these rights are exempt from the numerous clausus
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Registration

Most intersts in land can be registered on the Land Register --> interest is then a legal right in rem --> everybody is taken to have notice of it and to be bound by it 

Registration and equitable rights in rem

  • before 2002 rule was that an equitable right in rem bound everyone aparet form bona fide purchaser for value without notice
  • LRA 2002 simplified this rule --> if you have a registrable equitable interest in rem and you don't register it then it won't bind a disponee for value -->
    • regardless of if they know of your interest 
    • but if disponee does not provide value then your right is likely to bind her
  • LRA 2002 s28 --> basic priority rule
    • A's right, though unregistered, should take priority over C's right because the competing rights should be ranked according tot he order in which they were created with first-created ranked highest 

Registration as actual notice -->

  • basic rule --> if it's an interest recorded on the Register, then you're bound by it 
  • some itnerests don't require registration to be legal rights in rem --> overriding interests
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Why is there a requirement of deeds and registrati

Traditional argument -->

  • better if peoples' rights over land are easily provable because land is an especially valuable formof property 
    • not convincing --> many other valuable types of property don't have these requirements

Better argument -->

  • land is immoveable and therefore particularly vulnerable to all sorts of rights claims
    • possible to enter into agreements to create legal rights and obligations that don't create legal estates
    • law has to be able to distinguish legal ownership rights in land (estates) from general interests in land 
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Rights in personam and rights in rem

Rights in personam 

--> Only effective against person with whom you have dealt

Rights in rem

--> effective against a wider range of people, everyone, if certain conditions are met

Nemo dat non quod habet --> no one can give what he does not have

Limits to nemo dat --> why?

  • pure nemo dat creates dangers for C
  • allows arbitrary domination over C by allowing A to insist on undiscoverable right against C
  • market efficiency --> if you insist on C taking extreme care to discover even undiscoverable rights then this increases C's transaction costs and discourages market transaction
  • nemo dat sacrified to extent necessary due to prevailing counter considerations
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Numerous clausus

Rights in rem as finite subset of all possible rights, with rest only capable of existing in personam

Numerous clausus = closed number

Why?

  • to ensure rights only operate in rem when to do so does more good than harm
  • different attempts to calculate this
    • economic analysis 
    • analysis of different considerations
    • republican analysis
  • law must prioritise competing intersts and considerations
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Kinds of rights in rem

Ownership --> fee simple absolute in possession or freehold title

Leases --> exclusive possession over land belonging to another for a defined period of time

Mortgages --> rights ecuring obligations, principally debts

Easements --> rights that one piece of land be used in a certain way, for hte benefit of another piece of land

Restrictive covenants --> similar to above

Rights under trusts --> rights entitling owners to benefit of land nominally held by others, who themselves are not allowed to derive benefit from it

Licences coupled with an interest --> rights allowing osmeone to enter the land of another so as to gain access to some asset that he owns and that is located there

(Licenses in general and are in personam, but possible that some could be added to numerous clausus)

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Why focus on rights in rem in land?

Why is land important?

  • ecnomics
  • welfare maximisation
  • can live off it etc
  • virtually indestructible
  • immovable

Why rights in rem?

  • necessary to have rights relating to land to allow human to exploit it
  • mechanism with distinctive quality that it remains in place whilst other rights relating to land are reconfigured
  • therefore facilitate exploitation of our most useful resource
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