An Introduction to Land Law

Simon Gardner, Emily MacKenzie

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781847319739
• Edition: 3
• Topic: Droit
• Subtopic: Droit des biens

The rules of land law are numerous, complex, and in some cases baffling to students. The study of land law is also often portrayed as dull. Too frequently those who find success in working out how the law operates in other areas find themselves defeated by land law. Even the great jurist Blackstone, while maintaining that 'there is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property', also concluded that the study of land law 'afforded the student less amusement and pleasure in the pursuit' than the study of crime and tort. This book tries to help with that problem. It aims to tell the rules' story: to talk about them in terms of the work they do, in a way that will allow readers to understand and engage with them. And through the example it offers, it aims also to give students the confidence, spur and tools to go on to develop such perspectives for themselves. The book covers the main points of land law found in the syllabuses of law schools in England and Wales. While it is not intended as a comprehensive textbook on the topic, it offers sufficient detail for anyone reading it to gain an overview of the subject, and for those seeking more the footnotes offer plenty of pointers. As well as bringing the coverage up to date, this new edition adds chapters about two especially challenging aspects of the subject: the human rights dimension, and the nature of 'ownership'. As one reader of the first edition commented, 'it shone light where none had shone before, and lit a clear path to understanding'. 'Well written and clear. A great introduction.'
Mika Oldham, Jesus College, Cambridge 'An excellent introduction. Many students will no doubt buy it.'
Matthew Conaglen, Trinity Hall, Cambridge 'A very clear and interesting way into a complex subject.'
David Gregory, Kingston University

Part 1

The Basic Ideas

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This book aims to give an account of that part of English¹ law known as ‘land law’.

This label is, however, misleading. It suggests that the topic is the whole set of English law’s rules relevant to land. This in turn could mean various things. At its widest, it could mean the set of all the rules applicable to someone using land. Since legal rules are propositions about human behaviour, and nearly all human behaviour takes place on land, ‘land law’ in this sense would comprise almost the entire law, excluding only the special rules applicable to activities on water or in the air. Less widely, it could mean, within that set, the subset of all the rules making some particular reference to the land dimension. So while the first meaning would take in the rules about pollution generally, the second meaning would include only those rules focusing specifically (though perhaps inter alia) on pollution of the soil. And while the first meaning would include the whole law of contract, the second would take in only those contract rules aimed specifically at arrangements involving land, such as room rental agreements.

One certainly could address such subjects, though the enterprise would be a huge one, because land is in these senses an aspect of so many rules. Even the less wide of the two meanings would, for example, take in areas as distant from one another as agricultural law, planning law, domestic violence, and the crime of burglary.

In practice, the label ‘land law’ is more often used much more narrowly: as referring, out of all the rules involving land, only – or at any rate principally – to the rules that establish rights in land, of two kinds: ‘rights in rem’ as recognised by English law (indeed, traditionally, ‘land law’ consisted only of these), and (a more recent accretion) those rights in land that arise under the European Convention on Human Rights. Attention to these two kinds of rights will be the focus of this book.²

The book is divided into three parts. The first, comprising Chapters 1 to 4, concentrates on the basic ideas: the two kinds of rights in land, and how they behave. Parts 2 and 3 contain more detail regarding specifically rights in rem. Part 2, comprising Chapters 5 to 9, looks at the ways in which rights in rem can be acquired. Part 3, comprising Chapters 10 to 17, reviews a number of different sorts of rights in rem. There currently seems less to be said about these matters in regard to rights in land arising under the European Convention on Human Rights . . . though this statement may turn out to require adjustment in future editions.

1

Rights in Rem

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As already stated, this book focuses on two kinds of rights in land: ‘rights in rem’ as recognised by traditional English (‘domestic’) law, and those additional rights that are declared in the European Convention on Human Rights. This chapter introduces the former, Chapter 2 the latter.

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1.1 The Idea of a Right in Rem

1.1.1 ‘Rights in Personam’ and ‘Rights in Rem’

Say I own a house, but then something occurs which, according to the rules of English domestic law, means that you now have a right to live in it. The ‘something’ might be that I make a contract with you to this effect; or that I give you a share in the ownership; or that I marry you; or various other significant happenings. Say then that I sell the house to John. In terms once again of English domestic law, there are two possibilities.

One is that your right cannot affect John. That is, it is effective only against me, and if you want to enforce it you will have to look to me, not to John. It follows, now I have passed the house to John, that you will not be able to insist on living there: as it is said, to maintain your right ‘in specie’. Only a right effective against John could allow that. Because your remedy can only be against me, it will have to take the form of a money payment, from me, compensating you for not now being able to live in the house. Rights which behave in this way are called ‘rights in personam’. Prominent among the rules dealing in rights of this kind are those comprising the ordinary law of contract. Contract has a feature called ‘privity’, whereby a contract between A and B cannot bind C.³ That is another way of describing the fact that rights arising under the law of contract alone are in personam.

The other possibility is that your right can affect – bind – John. If your right is of this kind, and the conditions for John being affected are indeed satisfied, your remedy is no longer against me alone: you can enforce the right against John. Just because your right is effective against John does not necessarily mean that you will be able to maintain it in specie, ie insist on living in the house: your remedy might still take the form of money compensation for not being able to live in it, though this time against John rather than me. However, effectiveness against John is certainly a precondition for your being able to claim in specie protection, and commonly this will indeed be forthcoming. If the law treats your right as having the potential to affect John in this way, your right is called a ‘right in rem’.⁴

Your right to live in the house might be of either kind. To know which, we need further information. For example, if you simply rent the house from me, your right will be a ‘lease’, and in rem; but if your right is to live in it with me, as my lodger, it will be a ‘licence’, and in personam. There are various other possibilities, some of each type. We shall review many, though not all, of them in the course of this book.

1.1.2 ‘The Potential to Affect John’

The previous section spoke of a right in rem as one ‘having the potential to affect John’, and noted that John will in fact be affected by it only if certain conditions are satisfied.

In principle, the law could say that rights in rem will affect John, full stop. In practice, contemporary English land law takes a more complex position, whereby John will commonly be affected only if certain circumstances are present. The rules on this point have varied over the years, but currently are for the most part stated in the Land Registration Act 2002. We shall look at these in detail in Chapter 3, but, for example, the position may be that John will be affected by your right in rem only if, before he bought my land, your right had been registered at the Government’s Land Registry. (A right in personam cannot be registered at the Registry, and even if somehow it were, it would still not bind John. Registration, and certain equivalent phenomena,⁵ constitute the circumstances under which rights capable of binding John will actually do so. So they apply only to rights in rem. A right in personam is by definition not capable of binding John, so will not do so, no matter what.)

The idea of a right in rem is sometimes conveyed in the Latin expression nemo dat quod non habet, ie no one can give what he⁶ does not have. Say I purport to sell John a house, but in fact it belongs not to me but to you. John does not become owner of the house, because I did not own it previously, so did not have it to give. Equally if I do own the house but have leased it to you for five years, thereby giving you a right in rem over it for that period. If I purport to sell the house to John, what I have to give is the ownership minus your leased interest, so the picture is painted of him acquiring the ownership minus your interest. Which, in both cases, explains why John must respect your interest: he never acquired (because I never gave him, because I never had) the ability to do otherwise.⁷ Whereas if your right is only in personam – as where you are my lodger – your claim is against me personally, so all the rights in the house remain mine to give, and I can successfully transfer them to John. If John chooses to evict you, all you can do is sue me for breaking my contract with you.

But this picture does not fit with the fact that English land law’s rights in rem affect someone like John only if certain conditions, such as registration, are met. I may own a house subject to a lease in your favour, but if that lease is not registered, John may not be affected by it: I will thus have given him the house unencumbered, despite not owning such an unencumbered house myself. So the actual law regarding the behaviour of rights in rem is not in fact fully described by the nemo dat image. How should we think about this discrepancy?

A quick answer might be that nemo dat is only a metaphor, and its imprecision therefore unimportant. That is not good enough, however. The idea underlying nemo dat is that when something ‘belongs’ to a person, as the house in the above examples belongs wholly or in part (to the extent of the lease) to you, that person’s entitlement to it is absolute, impregnable. This idea has a powerful appeal.⁸ The fact that the actual law departs from it, in the manner under discussion, therefore requires explanation and justification.

The key is that, for all its appeal seen from your perspective, the pure nemo dat idea creates dangers for others such as John. Dealing with me, he may believe that I have the house to sell, and that there are no derogations from this, for example a lease in your favour; and he may proceed on the basis of this belief, most especially by paying me for the house’s whole value. If this belief turns out to be ill founded, John will suffer. He may well have a claim against me for his money, or the relevant fraction of it, but this is distinctly second best to not encountering the problem at all.

Of course, John’s mistake may be entirely his own fault, with the result that we may have little sympathy for him. But equally, he may have taken all the care in the world, so that there is a sense in which the emergence of your right against him genuinely upsets the understanding he could reasonably have of his position. To put it more pointedly, the pure nemo dat idea, allowing you to insist on your (in this situation) undiscoverable right against John, permits you in that way to exert ‘arbitrary domination’ over him. And the precepts of republicanism – a very important political tradition treating liberty as the absence of such domination, or of any scope for it – invite us to organise the law so as not to permit such a thing.⁹ That is, they invite us to stop the law short of the pure nemo dat idea.

And consider finally the possibility that John took, not all the care in the world in failing to discover your rights, but all the care that we should wish him to. For the market in an asset to operate most effectively, so that the asset can move to the person able to extract the greatest profit from it, we need to minimise the ‘transaction costs’, ie the costs involved in procuring this movement. The more care we expect of John, or that is in effect demanded by our rules about when a right in rem will bind him, the higher will be his transaction costs, frustrating these boons.

From these points of view, then, it makes sense for the law to make John bound by a right in rem only when it ought to be easily discoverable. Hence the rule whereby John will in many cases be bound by your right only if the latter has been registered: registration makes for easy discoverability.¹⁰ The literal idea of nemo dat quod non habet is sacrificed to the extent required by such countervailing considerations. But that idea’s essential appeal remains, so the rules embodying the departures from it require the most careful design. Those currently in force will be examined and evaluated in Chapter 3.

1.1.3 Two Difficulties with the Terminology

Two difficulties with the terminology, ‘in rem’ and ‘in personam’, need exploration.

First, one often encounters other terminology, dividing the universe of rights into ‘real’, or ‘proprietary’, or ‘property’ rights on the one hand and ‘personal’ rights on the other. Unless it seems that the writer intends otherwise, it should be assumed that ‘personal’ is a synonym for ‘in personam’, and that ‘real’, ‘proprietary’ and ‘property’ are synonyms for ‘in rem’ . . . as are ‘a right in (or relating to, or affecting) the land’, ‘an interest in (or relating to, or affecting) the land’, or even ‘an interest’ without more.

These other labels may be preferred because ‘in rem’ and ‘in personam’ were originally used in the law of ancient Rome, whose rules gave them specific meanings; and the writer wishes to make clear that the meanings of the corresponding concepts in modern English law are not necessarily quite the same. Those who, like the present writers, use the Roman terms are, however, usually clear that they do so simply for convenience, with no intention to treat the terms as having the Roman or any other particular meaning. The Roman terms are generally used in this book precisely because, unlike their synonyms, they are not ordinary English words. Their very strangeness, by arresting the mind, helps to flag up the fact that the concepts in question are crucial, and involve technical rules.

Second, a writer will sometimes draw the line between rights in rem and in personam in a different place from that sketched in § 1.1.2, insisting that a right counts as ‘in rem’ only if it affects John without further ado, unconditionally, without need of registration or whatever; and that all other rights are thus in personam, including those that have the potential to affect John, but will do so only if certain conditions are met.

This issue arises because there are in fact three classes of right – (i) those that will affect John without further ado; (ii) those that will affect John, but only if certain conditions are met; and (iii) those that cannot affect John – but only two labels (whether Roman or English). A solution would be to adopt a third label, and some take this path, though the third label often chosen – and used for category (ii) rights – is ‘sui generis’, meaning ‘in a class of their own’, which is hardly illuminating. But say we restrict ourselves to only two labels, as is more us...