‘

Adam Baker Law 2270 and 3270

Land Law 2020-2021

INTRODUCTION TO LAND LAW

Reading

Please start by reading the ‘Module outline’ and ‘Online assessment information’
documents on the VLE. A specific opportunity to ask questions about them is
provided in seminar one.

Textbook

(Read any one of the following. There is no need to make extensive

notes.)

C. Bevan, Land Law (2nd ed. OUP, 2020), ch 1

B McFarlane, N Hopkins and S Nield, Land Law: Text, Cases and

Materials (4th ed. OUP 2018), ch. 1, 2, 5 and 6

R Smith, Property Law (10th ed., Pearson, 2020), chs. 1, 2, 4, 5 and 6

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1. ‘PROPERTY’ AND ‘LAND LAW’

1.1 ‘Land’ and ‘property’

Land is just one type of ‘property’. ‘Property’ can be physical things, rights in those
things (‘property rights’/‘proprietary rights’) and intangible assets (‘choses in action’),
such as shares in companies.

(Notes): The term property is very broad.

In terms of physical things, these divide into land and chattels. Chattels are any
physical thing that is not land, such as tables and chairs. ‘Land’ as a physical thing
includes:

(i) The ground below the surface, as far as modern technology allows us to
exploit it (Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 A.C. 380).

Notes: own a house, and also own a land. Question how far down your ownership goes.

(ii) the surface, including trees and plants growing from it.

Notes: for example, oil or minerals beneath the surface is not yours.

(iii) Any structures or items on the land that are objectively intended to form
part of it: Elitestone Ltd v Morris [1997] 1 W.L.R. 687.

Notes: bring something to the land would become part of the land – such as bricks wall –
taken out no more, kitchen sink buy it not a land until installed, if removed become
chaddle. Objectively intended: if bring a book shelf might not be intended because not
fully attached, something that is fully attached will be part of the land.

(iv) The airspace above the surface to a reasonable height: Bernstein v

Skyways & General Ltd [1978] Q.B 479.

Notes: reasonable height: properly couple of 100 meters – cannot fly over. At some
airspace above the surface is treated as land a sale of a portion of the airspace is
technically a sale of land.

Property also includes rights we have in physical things. We often call these
‘property rights’ or ‘proprietary rights’. An ‘ownership’ right is an example. If for
instance one ‘owns’ a book, what one has is a right over that book. The same goes if
one ‘owns’ land: one has a right over that land. As will become clear, however, one

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does not have to be an owner of a physical thing to have a property right in it. In
other words, we can have property rights to use other people’s land.

Notes: a book own is a right in relation to that book, if sell giving the right to enjoy the book. (All
common law systems provide special rules for property rights in land and contracts to use land. Land
law is the study of these rules.

Intangible assets are very important in the modern world. They include shares in
companies, intellectual property and contractual rights. Contractual rights to use land
are common in practice.

All common law systems provide special rules for property rights in land and
contracts to use land. ‘Land law’ is the study of these rules.1

2. ‘OWNERSHIP’: THE d an ESTATE

Policy issues introduction

Systems of land law recognise rights what, in non-lawyers’ language, might be

described as ‘ownership’ rights. Such systems must address various related
questions about these rights. They include:

- What precisely should ‘ownership’ mean?

- How many persons should be allowed co-own any ownership right?
- How should rights of ownership arise?
- What should be sufficient to prove ownership?
- What formalities should be necessary to transfer ownership?
- To what extent should one be able to ‘fragment’ ownership into time
periods?
- Under what circumstances (if any) can an ownership right be defeated or
taken away without consent?

In this section, we will introduce the answers provided by the law of England and
Wales to these important issues.
2.1 The legal fee simple as ‘ownership

The ‘ownership’ right in any given plot of land is the legal fee simple estate – or the
‘legal fee simple absolute in possession’, to use its full name. It can be owned by an
individual or co-owned (see section 3.2). To explain its terminology:

1
The term ‘real property law’ is used in some jurisdictions. ‘Real property’ is physical land plus all
property rights in it (except for leasehold estates). ‘Personal property’ is everything else.

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a) The word ‘legal’ distinguishes it from an ‘equitable’ estate existing under a

trust (see section 4).

b) The word ‘fee’ means that it can pass by inheritance (i.e. under a will or in
intestacy). The word ‘simple’ means that the estate can last for so long as
whoever is the current owner does not die (or is wound up, in the case of a
company) without anyone to inherit it.

Notes: Intestacy: don’t leave a will or leave a will but does not include fee, there are legislation
to support that! A company can also own land, If a company is terminated or wind up and no
wishes to buy the land then legal fee simple will end

c) ‘Absolute’ means that there is no event that can terminate it earlier than this.

Notes: Absolute: historical law. Legal fee simple: only ends, if there is no one who inherent
it. (In English and Wales Law the ownership right of land is legal fee simple absolute
possession.

d) The words ‘in possession’ means that it gives a present right to enjoy the
land.
In practice, we use shorter labels to describe the estate (e.g. ‘legal fee simple’, ‘legal
estate’, ‘legal title’, ‘legal ownership’). It is also sometimes referred to as the
‘freehold’.2 Its holder(s) are often called the ‘owner(s)’ and the ‘legal owners’, the
‘freeholder(s)’, as well (in some contexts) as the ‘registered proprietor(s)’ (section
2.4, below).

Notes: The legal fee simple isn’t always absolute and is always in possession

In strictness, calling holders of this estate ‘owners’ is open to objection. First, it is

often said that the legal fee simple is not a right of ‘ownership’, as that the Crown
technically ‘owns’ all land in England and Wales. (This theory dates back to the
Norman Conquest in 1066.) Secondly, the rules of ‘adverse possession’ make
reference to ‘ownership’ problematic (see Unit 5). Nevertheless, in practice we often
use the word ‘owner’.

Notes: Unit 5: adverse possession

What specific rights does a legal fee simple owner(s) have? A crucial idea is that the
fee simple is a right to ‘possession’ of land. This means that its holder can control
access to the land. If a third party violates this right (e.g. by ousting the owner from
the land), the legal fee simple owner(s) will have a claim against them in tort.

Notes: right to possession of land and furthermore!

Because they control access in this way, legal fee simple owner(s) are free to use
the land in any way(s) they wish. This entitlement is, however, curtailed in various
2
Note that the term ‘freehold’ (/’freehold estate’) can also describe other rights: Section 2.6.

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ways. It is for example subject to the exercise of any ‘property rights’ over the land
(section 3.1); any contractual rights over it; and any restrictions imposed by the
general law.

An owner of a legal fee simple also has powers to deal with it. They can, for
instance, create rights over the land (see section 3, below). They can also sell the
fee simple or give it away (whether by gift or in a will): see section 2.5, below. They
can also sell (/give away) part of their land. In this event, the recipient takes a new
legal fee simple in the part sold (/given away). It is as if the legal fee simple is split
into two.

Notes: the owner can create their own rights you can give away parts of it.

2.2 The legal fee simple can be co-owned

A legal fee simple can be owned individually or co-owned. Note however that minors
cannot be owners (or co-owners) of a legal fee simple (Law of Property Act 1925, s
1(6)). The maximum number of co-owners is also limited to four: s 34(2) Trustee Act
1925; and s 34(2) LPA 1925. Co-owners must agree on how to use property, and too
great a number of co-owners may thus stifle decision-making. If one wants more
than four persons to be entitled to land, one can use a trust (see section 4).

Notes: Can only have up to 4 owners of legal fee simple state

When a legal fee simple is transferred as a gift (or under a will), the terms of the gift
(/will) say who it goes to. If the legal fee simple is being transferred from a seller to a
buyer(s), the buyer(s) instruct the seller who to transfer it to. On how the legal fee
simple is transferred, see section 2.5.

Notes: specify terms, if gift. Further, the buyer will instruct the seller who to transfer to.

2.3 How legal fee simple estates first arise

An obvious question for any system of land law is where ‘ownership’ comes from. In
England and Wales, a legal fee simple can first arise in two ways:

a) By a Crown grant. This was common many centuries ago. When the Crown
creates a legal fee simple over a plot of land, it has no ongoing rights over
that land.3 Only if the legal fee simple over some land comes to an end will the
land be Crown land again. The Crown can also in principle enjoy any land
over which it has never granted an estate.4 In practice, this means that a new
3
Originally, these grants were made in return for the performance of some feudal duties to the King (this is the
‘doctrine of tenure’). With the decline of feudalism in England and Wales, these duties were forgotten.
4
There is one exception. If a squatter takes possession of Crown land, they gain a legal fee simple. If the Crown
fails to regain possession within a certain period of time, the law treats it as if squatter’s legal fee simple had

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estate will be granted. ‘Demense’ land is any land in which there is currently
no estate.

Notes: Crown ownership will be significant if the legal fee simple comes to an end and the
land is crown land again. /A land that has never been bought or no estate is called demense

b) Through squatting (‘adverse possession’). This is explained in Unit 5.

In theory, by tracing back the previous owners of the legal fee simple estate, one can
discover the origin of it, whether in a Crown grant or an act of ‘adverse possession’.
In practice, this is often impossible. It would be excessively burdensome in any
event. Therefore, other ways exist to prove ownership of legal fee simple estates.

2.4 Proving ownership of legal fee simple estates

How one proves the ownership of a legal fee simple today depends on whether it is
‘registered’ or ‘unregistered’.

With an ‘unregistered’ fee simple, one usually proves ownership by producing

a chain of ‘title deeds’, i.e. by showing the previous owners of the estate going
back for a sufficient period of time.5 Statute now sets this period at fifteen years:
Law of Property Act 1969, s 23. Because each transfer of the estate must be by
deed (s 52 of the Law of Property Act 1925) or an assent (a written document
by which personal representatives can transfer an unregistered legal estate:
Administration of Estates Act 1925, s 36(4)), and the previous such title
documents are passed onto the current owner, showing a chain of title deeds
should not be that difficult.

Notes: Proven by documentary, have to prove the ownership for unregistered fee by going back
period of time, modern rule is 15 years: have to ask who was the owner 15 years ago and have to
find the document that give them the land and only later documents.

A registered fee simple is one, the title to which (i.e. ownership of it) is
recorded online at the Land Registry. One may hence prove its ownership by
reference to the Land Registry. We often call the holder(s) of such an estate the
‘registered proprietor(s)’.

Notes: One that is recorded online on databases such as Land Registry. Registered holder: registered
proprietor(s).

been granted by the Crown. It then ceases to be ‘demense’ land.

5
The exception is if the legal fee simple is one arising by adverse possession within this fifteen-year period. In
that event, one would also need to show the adverse possession which gave rise to the estate.

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Unregistered estates can become registered ones. Countrywide registration of

(unregistered) legal fee simple ownership started with the Land Registration Act
1925. Unregistered legal fee simple owners can voluntarily apply to register
their estate. Crucially also, any transfer of an unregistered legal fee simple
must be registered after it has been transferred: s 4 LRA 2002. However, this
rule originally only applied in certain parts of the country. Only since the 1980s
has it applied countrywide. Nevertheless, there has been a steady increase
over time of the proportion of legal fee simple estates that are registered.
Today it is about 95%.

Notes: Once all states were unregistered until the Land Registration Act 1925. In order to transfer an
unregistered legal fee simple to use a deed, an assent (a will)

In practice, lawyers and writers often talk about ‘registered land’ and ‘unregistered
land’. ‘Registered land’ is when the legal fee simple in it is registered at the Land
Registry. ‘Unregistered land’ is when that legal fee simple is not so recorded.

2.5 Transferring legal fee simple estates

We have already seen that, in order to transfer an unregistered legal fee simple, one
needs to use a deed (s 52 LPA) or an assent (in the case of persons executing a
will). The legal fee simple will pass at this point, but one must then register it within
two months (s 4 LRA 2002). After this point the estate becomes a ‘registered’ estate;
and it can never become unregistered again.

Notes: after the unregistered fee simple is transferred, it then has to be registered. The deed (s 52
LPA) passes the legal fee simple, but then the person taking it has to send off the appropriate forms
to the Land Registry to register it. The estate then becomes 'registered', and will remain so from that
point onwards. It follows that the proportion of unregistered estates is slowing falling

The requirements for a valid deed are contained in s 1 of the Law of Property
(Miscellaneous Provisions) Act 1989.

With a registered legal fee simple, any lifetime transfer must not only be by deed (s
52 of the Law of Property Act 1925), but must also be registered (s 27 of the Land
Registration Act 2002) (this is done by sending off the required documentation to the
Land Registry, which then updates the register accordingly).6

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The position on death is different. The personal representative(s) can apply to be registered as the
new legal fee simple owner(s), and then proceed in the same way as the owner would. But there is an
alternative. Without ever applying to be registered as the owner, they can apply to the Land Registry
to alter the register, in favour of whoever is entitled to the estate (Land Registration Rules 2003, r
162).

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In principle, the requirement of a deed is sensible. It is an example of a ‘formality

requirement’: one that governs the form by which a legal transaction must occur.
Formality requirements serve a useful evidential and cautionary function.

Although formality requirements are sensible, they do lead to problems in some

cases. If ‘ownership’ can only be acquired by using formalities, persons with a ‘moral’
claim to the land (or a share in it) would be left with nothing.

As we will see, while the law strictly insists on the correct formalities to transfer a
legal fee simple, other claims against the legal owner may exist in some cases when
the result would otherwise be ‘unconscionable’.

2.6 Fragmenting ownership into time periods

Landowners sometimes wish to leave their land to various persons in succession.

This was particularly so when keeping large landed estates in a family was a
common aim of the landed classes. Even today persons may wish to leave
properties to one relative (e.g. a spouse) and then another (e.g. the children).

Notes: No longer possible to split the legal fee simple up into separate period of time. (To make
things easier)

How far the law should accommodate such desires is a complex social policy
question. It is not a focus in this module. Only a brief summary of the position is
desirable here.

The starting point is s 1 of the Law of Property Act 1925. Before its enactment, the
legal fee simple could be split up into smaller time periods. When this happened the
legal fee simple absolute in possession ceased to exist, and was broken up into
smaller, ‘successive’ entitlements. This could be two estates or more. Complex rules
determined what types of estate they could be. One could for example have estates
that lasted for the lifetime of its holder (‘life estate’) and ones which passed down
one’s lineal descendants only (‘fee tail’). They were, however, all categorised as
legal ‘freehold estates’, which meant that their exact duration was indeterminate. In
other words, their exact duration (i.e. in years and days) is unclear at the time of their
creation, though we knew what event(s) would end them.

As of 1 January 1926, s 1 of the LPA stops this from happening. If a legal fee simple
owner now wishes to create successive freehold estates, 7 they must do so by using

7
Note that since the Trusts of Land and Appointment of Trustees Act 1996, it is not permissible now to create
any new fee tail estates at all.

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a ‘trust’. In this event the successive freehold estates will be equitable, but the legal
fee simple remains.8 For a discussion of trusts, see section 4 and Unit 2.
The rationale behind s 1 is to make it easier to buy and sell land. If the legal fee
simple can be broken into smaller time periods, anyone looking to buy the land will
have to deal with every holder of one of these periods. Since the 1925 Act, a
prospective buyer need only deal with whoever has the legal fee simple.

2.7 Defeating (or taking away) legal fee simple estates

Exceptionally, an entitlement to a legal fee simple can be lost. This can happen in
various ways. One of them (not a focus in this module) is through compulsory
purchase Compensation is payable when this happens.

The scope to lose ownership of a legal fee simple is by ‘adverse possession’ is

considered in Unit 5. When this happens, no compensation is payable. This has
made the law surrounding adverse possession especially contentious.

Notes: Can be lost by compulsory purchase: government buy land back from you forced to sell.

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By the same token, if there were successive legal freehold estates in any plot of land when s 1 LPA 1925 came
into force, they were in effect recombined by the 1925 Act, and a trust was imposed, under which the owner(s) of
them were given equivalent ‘equitable’ freehold estates instead.

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3. PROPERTY RIGHTS AND PERSONAL RIGHTS

Policy issues introduction

In this section, we will see why it is necessary to have both ‘property rights’ and
‘personal rights’. We also introduce some of the important (and difficult) policy
questions that this raises. Over the course of this module, you will see how the law
has answered these questions.

3.1 Introduction

Society could not function effectively if we could never have rights to use the land of
other persons, affecting also later owners of that land. Land is a limited resource;
and getting the best use out of it will depend on such rights.

Notes: land is a limited resource. Ex: block of stairwell: all of them can use it. Have right to use the
land. – a block of flats: all of the flatowner have right to use the stairwell: new owners of that flat
land: cannot tell not to use it. (Another example:: need to connect the house with the mains
electricity all the boardband through the cable or the electricity running through the cable will not
simply be lost as soon as you happen to sell the land

In principle, landowners (e.g. legal fee simple owners) 9 may be happy to confer such
rights over their land on other persons. Admittedly, this might reduce the value of
their property. How far it would do so would depend on matters such as how
extensive the right is and how much it affects what an owner might want to do with
the land. However, landowners do not have to create rights over their land for free
(though they could do so). They can demand whatever they see as a fair price for
the right.

Notes: a landowner can charge a right: if for example I decide that I want to buy some property
would like a road of way, you own the land or road: you can charge a price that reflects that.

In addition, sometimes a third party deserves a right that binds the existing
landowner and later owners, even though the landowner has not formally agreed to
the right. Sometimes a landowner can act in such a way as to make this a fair result.
Merely requiring them to pay damages in such a case would not be adequate.

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Technically, anyone who is an ‘estate’ owner (e.g. a leaseholder) can create a property right.

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Notes: not formally agree to it: example: when I bought my house that I could have right over the
field: no actual formal documentation : if you lead me to believe I do have that certain right than it
would be unfair for me not to have that right.

For these reasons, the law allows owners to create (and sometimes will impose on
them) ‘property rights’ (‘proprietary rights’). These are rights over a thing – here it is
land – that is capable of being enforced against third parties. In principle, a ‘third
party’ for this purpose is anyone who was not involved in the creation of the right. For
example, if a legal fee simple owner10 creates a property right, a third party could be:
(i) someone who later buys (or is gifted) the fee simple (in which event the right is
said to ‘bind’ them); (ii) someone later given a right by the legal fee simple owner; or
(iii) someone who is on the land without any permission at all (e.g. a trespasser who
obstructs the exercise of the right).

Notes: sometimes happy to give these and sometimes act perhaps that I deserve the right//ex.right
to cross over the field: property right do not affect anyone; it is not binding: it does not affect
everyone. (property and personal right affect people who weren’t involve in creation of that right –
meaning mentioned above….. (Example: Beth is the owner of a field. Confers a p right on Ada to walk
across that field: If beth sells the land to Cynthia, Ada can assert their right to cross the field against
Cynthia). (Example(b): Cynthia decides to lease out the field to Juanita, Ada can continue to assert
her right to cross the field against Juanita. (Example (c): Darcy causes an obstruction on the field
which interferes with Ada’s right to walk across it: Ada may claim against Darcy. --- Property rights
can or do affect third parties

Defined in this way, the legal fee simple itself is a ‘property right’. It is protected
through the torts of nuisance and trespass to land. It can also be enforced against
third parties who take possession of the land without consent (a ‘possession claim’).

On the other side of the line are ‘personal rights’. These are enforceable only as
between the parties who created them. The following are personal rights:

- Contractual licence: a contractual right to use land in some way(s). Their

revocability is a matter for the terms of the contract.

Notes: Property right a contractual license is not. It is a personal right. (EX. Anna owns a fiold, enter
into contract with David. Given David right to picnic on field every Sunday until the end of 2020 in
return for 500p – David can only enforce the right against Anna, If Anna sold the field to Nathan
before 2020. – Could not enforce the right against Nathan he could sue Anna for breach of contract).

- Bare licence: a non-contractual permission to use land in some way(s). They

are revocable at any time (the licensee has a reasonable time to leave).

Notes: are revocable: invited to the house for a drink: you are a bare licensee in my house:
will have a reasonable time to leave, if stay longer will become trespasser. Some bare license
is implied: delivering things door to door, if put a notice then they wouldn’rt be implied to

10
If the right is created by a leasehold estate owner, the right can bind persons to whom the leasehold
estate is later transferred, but the right would not bind the legal fee simple owner.

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that on other hand if sell the house on Wednesday and invited on Thursday for a drink in
that case the bare license does not implied.

- Home right: this statutory right is given to some spouses (see Unit 4).

Notes: UNIT 4

3.2 Limitations on creating property rights

There are two vital limits on creating property rights.

(1) The law only allows certain types of property right.

While there are advantages of property rights, there is a societal interest in

having controls over what can be one. This is due to their effect on third
parties.

Notes: there are dangerous things they can affect other persons: If a person current owner
allows a third party to use a field to through a frisbee around, if a new owner find they can’t
do anything with it, if to build on it: it would interfere. Can’t terminate property rights. But
have right to negotiate with the person who has a right to use the field.

All in all, there are only a little over a dozen recognised types of property right.
Only about half of them are often encountered in practice, such as leases (a
right to exclude the ‘landlord’ for a defined period, usually for a rent) and
easements.

In order to expressly create a property right, one must confer one that meets
the conditions for a recognised type of property right (as appear in case law
and legislation). In Units 2–4, we will explore the main such types of right. If
the relevant conditions for a right are met, the right must be of that type, even
if the parties did not realise this (or subjectively want it).
Any attempt expressly to create a property right that does not meet the
conditions for any ‘type’ of property right must create only a personal one: Hill
v Tupper (1863) 2 Hurl. & C. 121. The right will be either contractual (if it was
created by contract) or a mere permission (if there is no contract). The only
exception to this is if the matter goes to the courts, and they decide to
recognise that the right is a new type of property right entirely (e.g. Tulk v
Moxhay (1848) 2 Ph. 774). This happens only most exceptionally. While the
courts seem to think they could do so in future, it has never been made clear
when this might be possible (statements on this point are vague: see e.g.
National Provincial Bank Ltd v Ainsworth [1965] A.C. 1175, 1247–1248 per
Lord Wilberforce), and some authors argue they are not allowed any more
due to the Law of Property Act 1925, ss. 1 and 4.

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Notes: there might be requirements for a property rights: LATER BE LOOKING AT THE
REQUIREMENTS: Ex: lease have to be certain period of time. -------- If you have created
meets the conditions for a particular type is what you have created that is what you have
created. LATER ON - property can sometimes be imposed on people

We noted earlier that the law sometimes imposes property rights on

landowners who have not expressly created them. In principle, only
recognised types of property right can arise in this way, in circumstances
governed be precedent and legislation. The courts have not ruled out
imposing new types of property right; but they have given little guidance as to
when (if ever) it might happen. For a short-lived attempt to impose a new type
of property right, see Bendall v McWhirter [1952] 2 Q.B. 466, creating the
‘deserted wife’s equity’, which was overruled in National Provincial Bank Ltd v
Ainsworth [1965] A.C. 1175.

(2) Any relevant formalities must be complied with

Notes: how you create the right, what evidence you have: might have to use deed.
Legislation often requires ‘formalities’ for the express creation of property
rights. Precisely what this means will vary according to the circumstances. It
might for example involve the use of writing (that is signed); the use of a deed;
or the use of a deed plus registration.

If the correct formalities are not used, the right will be personal only. The
personal right would be a contractual licence if it arose by agreement, and a
bare licence if not.

In addition, note that any contract to create or transfer a property right at a

future date must (subject to some exceptions) comply with s 2 of the Law of
Property (Miscellaneous Provisions) Act 1989. This broadly means that the
agreement must be in one written document, signed by both parties, which
incorporates all the expressly agreed terms.

3.3. ‘Legal property rights’ and ‘equitable property rights’

Notes: later on as year progresses – property can’t bind everyone, it is hard to discover. Need to
have a confident what you are buying
It would not be appropriate if property rights bound any buyer of the affected land,
regardless of the circumstances. The law might consider how important the right is,
and how clear its existence is to potential buyers. The law provides different levels of

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protection to different types of right. These rules are considered in Unit 4, but the
starting point is that any property right in land must be either ‘legal’ or ‘equitable’.
Notes: Any property right in land must be wither legal or equitable

i. ‘legal’ property rights: these rights usually bind any purchaser of the land.
(Statute provides some exceptions: see Unit 4.) Notes: usually binds anyone some
expections applied

ii. ‘equitable’ property rights: the rules on when these rights bind give them
relatively strong protection, but less protection than for legal property rights.
Notes: will usually binds but they don’t bind as often

Notes: section 1 lists the rights that can be legal or equitable

Section 1 LPA 1925 lists the types’ of property right can be either legal or equitable.
With an easement, for example, one could have a ‘legal easement’ or an ‘equitable
easement’. The rights not listed in s 1 can only be ‘equitable’. In practice, we do not
explicitly refer to them as equitable rights, because it is clear that they must be.

When a legal owner of land confers a property right that can either be legal or
equitable (i.e. one listed in s 1), it will be legal if either it is created by deed (s 52
LPA) or it comes within s 54(2) LPA (by which some short leases are legal even if
created in writing or orally: see Unit 3). If neither of these is the case, the right will be
equitable under the doctrine in Walsh v Lonsdale (1882) 21 Ch. D. 9, if it is conferred
by a written document that incorporates all the terms of the parties’ agreement (s
2(1) LP(MP)A 1989). Failing that, the attempt to create a property right fails entirely.
The right will be merely contractual (if in a contract) or a bare permission (if it is not).

Notes: If it’s listed in section 1: it can be legal or equitable, it will be legal if it meets the requirement
of formality to be legal. Failing that can be equitable if it’s in writing on the case of Walsh v Lonsdale.
And failing that it’s only a personal right.

With rights that can only be equitable, any express conferral of them must be in
writing and signed: s 53 LPA 1925. 11 However, some types of equitable right can
also arise in circumstances when no formalities are required.

In setting out these rules, Parliament’s thinking is presumably as follows:

i. Some types of right warrant slightly less strong protection against purchasers,
and so should be equitable only. This might be, for example, because they
are less socially important, and/or as the type of right in question may be
harder to discover (e.g. because it can arise informally, or because it leaves
no obvious signs on the land). It would be wrong for it to bind automatically
(as is the usual rule with legal rights).
11
In practice, deeds are sometimes still used to create equitable property rights. The deed will be
sufficient to meet the requirement of writing.

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ii. The other types of right are in principle of such importance to warrant strong
protection against purchasers. However, in order to avoid being unfair to
purchasers, the law should only afford this strongest protection if the right is
readily discoverable by anyone looking to buy the land, which it almost
certainly will be if it was created by a deed (and registered, if necessary).
Therefore, when these types of right are created by deed (and registered, if
necessary), they should be legal, i.e. they should bind any purchaser. If by
contrast the right is only created in writing, it would be too harsh to say that
there is no property right at all (hence one can arise due to the doctrine in
Walsh v Lonsdale), but the rules about when it binds should offer slightly less
protection, as they are not necessarily as easily discoverable by buyers, who
need to have some confidence about what they are buying. In broad terms,
therefore, equitable rights should be reasonably discoverable in order to bind
buyers (see further Unit 4).

3.4 Regulating ongoing relationships

An important issue is how land law deals with the ongoing ‘legal relationships’ that
go with some property rights While some dealings with property involve no ongoing
relationship – e.g. if I sold you my house – other ones do. Important examples are
the relationship:

i. between parties to the creation of a lease (see Units 3 and 4)

ii. between the parties to a mortgage (Unit 4)

iii. between co-owners of land (see Unit 2)

iv. between a landowner and a person with a contractual right to use their land
as their ‘home’/for business purposes etc. (Unit 3)

There are good reasons why the law might not leave the rules governing these
relationships entirely up to the parties’ own agreements. One of them is desire to
protect persons who may justifiably lack legal awareness and/or bargaining power.
Precisely how far the law should intervene is often a very contentious issue.

Notes: Some pr involve ongoing -r : for example, landlord and tenant relationship – the law will
intervene

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4. TRUSTS

Policy issues introduction

The trust is a way by which a person who does not own (/co-own) the legal fee
simple can become entitled to a share in land. The question of when exactly this
should happen is highly controversial. We will introduce the trust in this section.

Notes: the legal fee simple owner is in this event sometimes called the absolute owner.

4.1 Introduction

We have already introduced the legal fee simple estate and that powers it affords
(section 2). In principle, the holder(s) of it are entitled to use these powers for their
own benefit (and also to keep the sale monies if they decide to sell it). This is the
default position; the legal fee simple owner is in this event sometimes called the
‘absolute owner’. However, this default position is overridden if a ‘trust’ exists. This
can happen when the legal fee simple owner(s) expressly declare a trust (an
‘express trust’), or when one is implied (an ‘implied trust’).

Notes: express: holder or holders legal fee simple declares the trust – in writing. Implied trust case
law impose. (Legal fee simple hold on trust). (You can be both trustees or beneficiary)

When a trust of a legal fee simple arises, its owner(s) are ‘trustees’. Their estate is
‘held on trust’; we sometimes say there is ‘a trust of it’. The trustees must use their
rights as legal fee simple owners for the benefit of certain other person(s) (called the
‘beneficiary’/’beneficiaries, or the ‘equitable owner(s)’), of which they may be one. In
this sense they must manage the land for the beneficiaries. With an express trust,
the beneficiaries are the persons identified in the express declaration of it. Notes:
document will say benefictors are? With an implied trust, the beneficiaries are determined
by the legal rule that gave rise to it. Notes: case law will govern when implied trust arises and
who the beneficiaries are. There is no maximum number of beneficiaries. Notes: can have
more than four beneficiaries. The beneficiaries can enjoy the land, according to how it is
being managed (e.g. to take any rents paid if the land is rented out).

Notes: The trustees have to act in good faith in best interest of beneficiaries. Ex. An investment
property: trustees decides to rent it out, rents will be payable to benef. If trustees decide to sell the
property money will be given to benefite- or trustees decides to the land to be occupied, benef- will
occupying. ---- The trustees make the decision how is the land to be used and the beneficiaries
benefit from the decision.

The trustees are subjected to various duties, and the beneficiaries have standing to
sue for breaches of them. Rules also govern matters such as disputes about
management are dealt with, retirement of trustees and replacing/appointing
trustees.Notes: No need for this course
Thus far, we have talked about the legal fee simple estates being held on trust.
Other estates can also be so held.12 Indeed, one can also have trusts of property
12
Leasehold estates can be held on trust, as can the rights of beneficiaries (under a ‘sub-trust’).

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other than land (though some special rules apply to trusts involving land). In this
module we focus on trusts of a legal fee simple estate (and occasionally on trusts of
leases: Unit 3). Notes: Unit 3

The rights of the beneficiaries under a trust is an equitable property right. Notes: binds
third parties. If a legal fee simple is held on trust the right of the beneficiary could bind someone to
whom the legal fee simple is given. If I pass the legal fee simple to my collegeue Joe then bene finds
him – then he becomes the trustee.) Therefore, if a legal fee simple is held on trust, the
equitable property right has the potential to bind third parties who are given (whether
by gift or purchase) the legal fee simple (see section 4.4). If it does bind the
transferee(s), they become trustees.
The precise names used to describe the beneficiaries right varies according to the
property held on trust and the nature of their entitlement as beneficiaries.

If a legal fee simple is held on trust, the beneficiaries’ right is usually a ‘equitable fee
simple absolute in possession’.13 It is often called the ‘equitable fee simple’, the
‘equitable estate’, the ‘equitable interest’ 14 the ‘equitable ownership’ or the ‘beneficial
interest’. This estate can be owned solely or co-owned.

When the trust is of a legal lease, or of property other than land, the right of the
beneficiaries is simply called the ‘equitable interest’, the ‘beneficial interest’, as well
(sometimes) as ‘equitable ownership of’ the property.

Finally, note that the beneficial interest (and shares in it) are transferrable. The
formalities for a transfer are in s 53(1)(c) LPA 1925.

4.2 When do trusts arise?

As we consider in more detail in Unit 2:

Notes: you can declare or find someone to be a trustee if you wouldn’t want to be a trustee in
writing
a) Express trusts are ones validly declared in writing that is signed by the legal
owners: s 53(1)(b) of the LPA 1925. This declaration may include terms
stating how the trust is to be carried out. Attractions of using express trusts
include that they are virtually always conclusive of equitable ownership; they
may be preferable to simply making a gift to persons; and (less supportably)
they can be used to obscure the ‘real’ ownership of property.
Notes: If you created an express trust has to be in writing and signed and maybe specify
rules to be carried out. (ATTRACTIONS)
13
It would only be different if there was a trust giving ‘successive’ estates (e.g. an equitable life interest followed by an
equitable fee simple in remainder). In this event the trustee must manage the land in a way that balances the interests of the
beneficiary(ies) with the life interest and the one(s) with the remainder interest.
14
The term ‘equitable interest’ is also used to describe other types of proprietary right that are ‘equitable’ (see Section 5.3), so it
is important to be clear in each case about the sense in which the term is being used.

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b) Implied trusts divide into ‘constructive trusts’ and ‘resulting trusts’. Broadly
speaking, they both arise when the law deems that a non-legal owner should
(despite there being no express trust) be entitled to a share of (/all of) the
land. The chief difference between them seems to be that resulting trusts are
based on presumed intention, whereas constructive trusts are not. No
formalities are required for an implied trust to arise: s 53(2) LPA 1925.

4.3 Reasons for being a trustee

Although trusteeship is not always actively chosen (e.g. when an implied trust
arises), there are still often reasons for wanting to be a trustee. When one is a
beneficiary, for example, being a trustee as well involves one in the decision-making.
Some trustees act in a professional capacity and are paid for doing so. On other
occasions an adult may act as a trustee as a favour. This might for instance happen
when the beneficiary is a minor, and the trustees are (or include) relations of the
minor.

4.4 Beneficiaries and third parties

In Unit 4, we ask when the purchaser of a legal fee simple that is held on trust is
bound by the equitable fee simple. All one needs to know for now is that prospective
buyers of freeholds will virtually always look to buy the legal fee simple (even if they
know that there is, or that there might be, a trust). There are good reasons for this:

i. Whereas the legal ownership of land is usually quite easy to establish (section
2.4, above), the equitable ownership may be much harder to work out.

ii. Any prudent buyer of a legal fee simple can ensure that they take free of any
equitable freehold estate affecting it. They do this by ‘overreaching’.

4.5 Ending a trust

A trust will also if one person becomes the owner of both the legal and equitable
interests. The law does not accept that one person can hold on trust solely for

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themselves. When this happens, the equitable fee simple disappears, and the
person becomes the absolute owner.

This could happen in several ways. One of them is if the legal fee simple is
transferred to a buyer who is not bound by the beneficial interest (e.g. because of
overreaching). Another example is if the sole trustee buys the share(s) of all the
beneficiaries.

Notes: Law does not allow one person to hold trust solely for themselves , if this situation does come
up then trust disappears then equalive fee simple the person held simply become legal simple
owner.

5. POLICY ISSUES IN LAND LAW

Many policy considerations may underpin, explicitly or implicitly, arguments about

land law. Bearing them in mind may help you to analyse legal developments. They
include:

a. The importance of ensuring that land (as a vital and finite commodity) is used
in an effective way.

b. The importance of land law rules not operating in an unfair way against
particular groups of persons.

c. The idea that land law rules should reflect how persons act in the ‘real world’.

d. The autonomy of an estate owner to decide when to (and when not to)
transfer away, or grant interests affecting, their estate.

e. A desire to stop undue advantage being taken of the vulnerability of

contracting parties.

f. The maintenance of appropriate roles for the courts, on the one hand, and for
Parliament, on the other hand, in terms of setting the rules of land law.

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g. The importance of not undermining the aims of formality requirements for the
creation and transfer of interests in land.

h. The desire to ensure that such formality requirements do not either unduly
prejudice persons or allow owners to get away with unacceptable conduct.

i. The importance of ensuring that banks are able to lend money with
confidence in the security (i.e. a house) offered for it.

j. The desire for property rights to be sufficiently certain in terms of their limits
and features, so that persons (including buyers) know where they stand with
respect to them.

k. Sufficiently respecting the psychological bonds that persons have with land.

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