An Introduction to Land Law

Simon Gardner, Emily MacKenzie

• Publisher: Hart Publishing
• Year: 2015
• Print ISBN: 9781849465755
• eBook ISBN: 9781509900305
• Edition: 4
• Topic: Derecho
• Subtopic: Derecho de la propiedad

Gardner and MacKenzie's An Introduction to Land Law has been widely acclaimed by students and teachers for the distinctively informative and stimulating way in which it addresses this challenging subject. Concise and highly readable, it covers the main points of land law found in the syllabuses of law schools in England and Wales. While not intended as a comprehensive textbook, it provides both sufficient detail, and especially the illuminating overview needed, for a real understanding, and many pointers for those seeking more.
Most of all, it stands apart from other land law books in the model it offers of critical engagement with the material. As the authors say in their Preface: [W]e aim not just to state the law, but to paint its portrait, or tell its story, or something of that kind. So we set out to offer a careful, thoughtful, honest and critical (but not unsympathetic) appraisal, from a number of directions, both doctrinal and contextual. Once again, too, we present the portrait or story partly for its own interest, but most of all so as to encourage readers to try something similar for themselves – to reflect on the subject more, and so understand it better, and at the same time deepen their thinking skills in general. As well as updating the book's overall coverage, this new edition features reworked discussions of areas where the law has recently undergone substantial change, and also where the authors' thoughts themselves have developed – including ownership, easements, and rectification of the land register. As one reader of the first edition commented, 'it shone light where none had shone before, and lit a clear path to understanding'.

Part 1

The Basic Ideas

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, and—as impacting on the ‘home’—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 regarding 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 (whether from scratch, or by transfer from someone who has them already). 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.

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¹ Traditionally, ‘English and Welsh’, in that the two countries formed a single jurisdiction with a single set of rules; but devolution has created the possibility of divergence. To date, however, the rules in the area of ‘land law’ remain very largely common, so references to ‘English’ law may be read as very probably extending to Welsh law too. But for divergence, see eg Housing Act 1985 s 86, and Law Commission, Rhentu Cartrefi yng Nghymru/Renting Homes in Wales (Law Com No 337, London, 2013).

² This is not to say that other foci are unworthy of attention. For a reminder of how important the lack of rights to land may be, see D Cowan and J Fionda, ‘Homelessness’ in S Bright and J Dewar (eds), Land Law—Themes and Perspectives (Oxford, 1998) ch 10.

1

Rights in Rem

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.

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 entitleme...

Table of contents

• Cover
• Title Page
• eCopyright
• Preface
• Contents
• Table of Cases
• Table of Legislation and International Conventions
• Part 1—The Basic Ideas
• Part 2—Acquisition of Rights in Rem
• Part 3—The Individual Rights in Rem