Chapter 1
An Introduction to Modern Land Law
Chapter Contents
Introduction
Land law is a subject steeped in history. It has its origins in the feudal reforms imposed on England by William the Conqueror after 1066, and many of the most fundamental concepts and principles of land law spring from the economic and social changes that began then. However, while these concepts and the feudal origins of land law should not, and cannot, be ignored, we must remember that we are about to examine a system of law that is alive and well in the twenty-first century. It would be easy to embark on an historical survey of land law, but not necessarily profitable. Of course, the concepts and principles that were in use in the years leading up to 1 January 1926 – the effective date of the first wave of great legislative reforms1 – were themselves the products of decades of development, and every student of the subject must come to grips with the unfamiliar terminology and substance of the common law. Yet the purpose of this book is to present land law as it is today without obscuring the concepts and principles on which it is built. Indeed, as we move speedily forward in our electronic age, there is a need to constantly reassess and revise the system of land law that came into effect on 1 January 1926 in the light of all that has happened to society and our world since then. Consequently, although the substance of modern land law is still governed by the structure established by the Law of Property Act 1925 (LPA 1925), nearly 100 years of social and economic changes, inventive judicial decisions and further legislation have all played a part in moulding the substantive law to the needs of the modern age. In this respect, the most significant legislative development in recent times was the enactment of the Land Registration Act 2002 (LRA 2002). This came into force on 13 October 20032 and replaced entirely the Land Registration Act 1925 (LRA 1925). It heralded a new era for the law of real property, and its full effect is still being worked out in the case law.3
The LRA 2002 was the product of years of consideration and consultation by the Law Commission in conjunction with HM Land Registry. The reforms – the development of which is chronicled in detail in Law Commission Report No. 271, Land Registration for the Twenty-first Century: A Conveyancing Revolution – are designed to provide an efficient, clear, reliable and modern mechanism for the regulation of land of registered title. Many of the changes made by the 2002 Act remain controversial, even though over 15 years have passed since its entry into force. The most controversial proposal of all – the introduction of a system of paperless, electronic dealings with land (e-conveyancing) – would have revolutionised the way in which land is sold or transferred, marking a sharp break with the feudal past and the ancient origins of land law. However, even though the 2002 Act established the legal tools for e-conveyancing to operate, this has not yet taken place and it looks unlikely that the full scheme as originally envisaged will be implemented.4 A more likely scenario is the introduction of targeted tools and processes designed to facilitate electronic dealings with land as befits the reality of land transactions in our property market.5 However, even without full e-conveyancing, it is fair to say that the reforms of the system of land registration achieved by the LRA 2002 already have altered fundamentally the nature of land law in England and Wales. Modern land law has echoes of the past, but it looks to the future.
1.1 The Nature and Scope of the Law of Real Property
The ‘law of real property’ (or land law) is, obviously, concerned with land, rights in or over land, and the processes whereby those rights and interests are created and transferred. One starting point might be to consider the meaning of ‘land’ itself or, more properly, the legal definition of ‘land’ as found in the Law of Property Act 1925. According to section 205(1)(ix) of the LPA 1925:
Clearly, this is complicated and the statutory definition assumes that the reader already has a working knowledge of the basic concepts of land law, such as ‘land of any tenure’ (e.g. a ‘freehold’ or ‘leasehold’) and ‘incorporeal hereditaments’ (e.g. ‘easements’). In essence, what this statutory definition seeks to convey, and what is at the heart of land law, is the idea that ‘land’ includes not only tangible, physical property such as fields, factories, houses, shops and soil, but also intangible rights in the land, such as the right to walk across a neighbour’s driveway (a practical example of an easement), the creation of a ‘charge’ on land to secure a debt (a ‘mortgage’), the right to control the use to which a neighbour may put his or her land (a ‘restrictive covenant’) or the right to take something from another’s land, such as fish (being a ‘profit’ and another example of an ‘incorporeal hereditament’). As a matter of legal definition, ‘land’ is both the physical asset and the rights that the owner or others may enjoy in or over it. Consequently, ‘land law’ is the study of the creation, transfer, operation and termination of these rights and the manner in which they affect the use and enjoyment of the physical asset.
It is also important to appreciate why land law is fundamentally different from other legal disciplines, such as the law of contract or the law of tort. As we shall see, very many transactions concerning land or intangible rights in land take place through the medium of a contract. Thus, land is sold through a contract and a mortgage is also a contract of debt between lender and landowner. Similarly, the right to enjoy the exclusive possession of another’s land for a defined period of time (a ‘lease’) may be given by a contract between the owner of the land (technically, the owner of an ‘estate’ in the land and in this context the ‘landlord’) and the person who is to enjoy the right (in this context the ‘tenant’). Obviously, the conclusion of such a contract would bind the parties to it as a matter of simple contract law and the contract might require one of the parties to ‘complete’ the transaction by executing a ‘deed’ that formally ‘grants’ the right to the other.6 In such cases, the contract is said to ‘merge with the grant’, and the contract ceases to have any separate existence as a legal concept.7 Indeed, in everyday conveyancing practice, the parties to such a transaction may choose to proceed directly ‘by grant’ (i.e. by deed) without first formally concluding a separate contract. Clearly, however, whether the parties are bound by a ‘mere’ contract, or by the more formal ‘deed of grant’, they may enforce the contract or deed against each other: in the former case, by an action for damages or specific performance; in the latter, by relying on the covenants (i.e. promises) contained in the deed. Yet, the thing that is so special about ‘real property rights’, whether created by contract, by grant, or by some other method,8 is that they are capable of affecting other people, not simply the parties that originally created the right. To put it another way, ‘land law rights’ are capable of attaching to the land itself so that any person who comes into ownership or possession of the land may be entitled to enjoy the benefits that now come with the land (such as the right to possess the land exclusively, or the right to walk across a neighbour’s land to get to the highway), or may be subject to the burdens imposed on the land (such as the obligation to permit the exclusive possession of another person, or not to interfere with the neighbour’s right of way). This is the ‘proprietary’ nature of rights and interests in land, and it is very different from the merely ‘personal’ obligations that an ordinary contractual relationship establishes. In fact, another way of describing what land law is about is to say that it is the study of the creation and operation of proprietary rights, being rights that become part of the land and are not personal to the parties that created them. This is represented diagrammatically in Figures 1.1 and 1.2.