Sandra Clarke and Sarah Greer, Land Law Directions 2e Chapter 2: The structure of land law

1.

From where did the doctrines of tenure and estate originate? How important are they in the modern law? Answer: The doctrines of tenure and estate originate from the Norman conquest of England in 1066. The feudal system of landholding was introduced, whereby land was held from a lord for a period of time in return for certain services and other charges or incidents of tenure. The holding of land is tenure, and the period of time for which it is held is an estate. Tenure makes little practical difference to land law today, as everyone holds their land directly of the Crown, and there are no services due. The only remaining incident of tenure is escheat (the return of the land to the Crown on certain events). The doctrine of estates is still important, however, though the number of estates which can exist at common law was reduced by the Law of Property Act 1925. See 2.2.1 and 2.2.2.

2.

What were the main differences between legal and equitable interests in land before 1925? Answer: Legal estates and interests are those recognized by the common law. Equitable estates and interests are those recognized by equity. Equity was prepared to recognize interests that were not accepted by the common law, such as the interests of beneficiaries under a trust. Before 1925, the main differences between the two were that legal estates and interests were said to be good against the world (i.e. would affect anyone who bought the land or an interest in it), whereas equitable estates and interests were binding only on those who took with notice of their existence. The doctrine of notice meant that purchasers of land were sometimes bound by equitable interests of which they were unaware, but that sometimes equitable owners lost their interests if a purchaser of land had no notice of them. See 2.3.1 and 2.4.

3.

What were the main objectives of the 1925 property legislation? Answer: The 1925 property legislation consisted of six Acts of Parliament which consolidated earlier piecemeal changes in the law and brought it all together as a body of law, and which made substantial changes to the common law of property. The Acts tried to achieve two main objectives: to make it easier to transfer land and interests in land to others; and to make it possible to use land for a variety of purposes, both family purposes and commercial purposes, by allowing fragmentation of benefit (creating numerous interests in land).

OXFORD H i g h e r
Oxford University Press, 2010. All rights reserved.

Education

Sandra Clarke and Sarah Greer, Land Law Directions 2e Chapter 2: The structure of land law

This was achieved by three main reforms: firstly, by reducing the number of legal estates and interests in land; secondly by introducing a system of compulsory registration of title, and thirdly by providing a mechanism for lifting equitable interests from the land, and instead satisfying them from purchase money (overreaching). See 2.5.

4. Which estates in land can now exist at law? What has happened to the other former estates? Answer: LPA 1925 s.1(1) provides that there are only two legal estates in land. They are the fee simple absolute in possession (the freehold estate), and the term of years absolute, which is the leasehold estate. By LPA 1925 s.1(3), all other estates (such as the life estate and fee tail) can take effect only in equity. This means that the legal estate will be held by trustees to give effect to the life estate or fee tail. Since the enactment of Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) no new entails (fees tail) can be created in equity either. See: 2.5.1.

5. What is the difference between registered and unregistered land? Answer: Registered land is land to which the title has been registered at the land registry. Compulsory land registration was introduced by the Land Registration Act 1925, but is now governed by the Land Registration Act 2002. The register of title contains a description of the estate, the names of the proprietors, and charges and interests burdening the estate. The register is the proof of the title to the estate. There is no compulsion on a landowner to register their land unless a relevant event occurs, usually the transfer of the land to a new owner. Until that happens, the land is unregistered land. There is no definitive proof of title to unregistered land; the owner must produce documentation showing how they became the owner a good root of title. By 2007, over 90% of all titles to land had been registered. See 2.5.2, especially table 2.4.

6. How are equitable interests protected in unregistered land? Answer: There are three ways in which equitable interests may be protected in unregistered land. Some interests may be registered in the land charges register. Such interests are set out in Land Charges Act 1972 s.2 (see table 2.5 in the textbook). They must be registered against the name of the estate owner whose estate is affected, and once correctly registered, will be binding on purchasers of the land. These interests are generally ones which would be granted for money or moneys worth, and include estate contracts and equitable easements.

OXFORD H i g h e r
Oxford University Press, 2010. All rights reserved.

Education

Sandra Clarke and Sarah Greer, Land Law Directions 2e Chapter 2: The structure of land law

Some interests are not registrable and are intended to be overreached on a purchase of the land. This means that the right will be lifted off the land and into the purchase money. Such interests include the rights of beneficiaries under trusts of land. Some interests do not fall into either category, and will be binding on a purchaser if he or she has notice of the interest. This includes rights created by proprietary estoppel. See 2.5.2.1.

7.

Define the following. (a) (b) (c) (d) Registrable disposition. Notice (in registered land). Restriction. Overriding interest.

Answer: (a) A registrable disposition is the transfer of, or creation of, certain important interests in an estate in land which is already registered. A registrable disposition does not have effect at common law until the interest is registered (LRA 2002 s.27). Registrable dispositions include the transfer of the freehold, and the grant or transfer of a lease for more than seven years. For example, if Anna sells her registered freehold estate to Ben, the sale will be a registrable disposition, and must be registered for Ben to get the legal title to the estate. (b) Some interests that are not registrable dispositions need to be entered on the charges register or proprietorship register as a notice. There are two types of notice: unilateral and agreed. Unilateral notices are those entered without the consent of the registered proprietor. Agreed notices are entered, as their name suggests, by agreement with the registered proprietor. Notices can be entered either unilaterally or by agreement with the proprietor in respect of the burden of an interest affecting a registered estate or chargeLRA 2002, s. 32(1). Interests protected by notice include equitable mortgages and equitable easements. (c) Under LRA 2002, s. 40(1), a restriction regulates the way in which the registered proprietor can deal with the estate. A restriction may completely forbid a certain disposition, or may impose conditions on it. A very common restriction is one that requires money to be paid to two trustees if land is held on trust and this is a restriction that will be entered automatically by the registrar under LRA 2002, s. 44. The registrar may enter other restrictions at his discretion, to protect a right or claim, or to prevent invalidity or unlawfulnessLRA 2002, s. 42.

OXFORD H i g h e r
Oxford University Press, 2010. All rights reserved.

Education

Sandra Clarke and Sarah Greer, Land Law Directions 2e Chapter 2: The structure of land law

(d) Overriding interests are interests in registered land that do not have to be registered, but which are binding on a purchaser of the land. There are two categories of overriding interest: those that override first registration (under LRA 2002, Sch. 1) and those that override registered dispositions (under LRA 2002, Sch. 3). Both Schedules contain a similar list of interests, but there are more restrictions on the scope of those interests in Sch. 3. Overriding interests include short leases, and the rights of people in actual occupation of the land. See 2.5.2.2.

OXFORD H i g h e r
Oxford University Press, 2010. All rights reserved.

Education