Land Law

Mark Davys

• Editorial: Red Globe Press
• Año: 2019
• ISBN:
  9781352005202
• Edición: 11
• Categoría: Jura
• Categoría: Eigentumsrecht

This popular textbook on Land Law provides a clear, straightforward and concise introduction to this rich and adaptable area of the law. It uses accessible language and stresses a full understanding of a few important cases rather than a superficial understanding of many. The eleventh edition of this textbook has been thoroughly updated to reflect recent cases.Useful features that help guide the student include key concepts at the start of each chapter, self-test exercises, and diagrams illustrating how to apply the law, as well as suggestions for further reading. The extensive companion website contains a glossary, quizzes and suggested techniques on how to tackle questions and problems, available at macmillanihe.com/Davys-Land-Law-11e

This is an ideal companion for students studying land law as part of a law degree or on the GDL/CPE; it is perfect also for students taking the subject as part of a surveying or estate management course.

Part I

Introduction

Chapter 1

Introduction to land law

Key concepts

Human rights – rights that protect an individual from unfair treatment or discrimination by the State and public bodies.

Personal rights – rights that regulate a specific relationship and which are usually only binding upon the parties to that relationship.

Property rights – rights that are capable of binding third parties.

1.1Approaching the study of land law

Land law is an interesting and challenging subject, which engages with profound questions about the way we choose to live our lives and the values of the society in which we live them. For humans to function together as a society, even a technological, high-speed society where transactions are as likely to be virtual as material, they need to share the physical environment around them. The law of England and Wales calls this environment land. Frequently, and especially where the supply of land is limited, as in England and Wales, different people will want to put the same land to different purposes. Sometimes these purposes are reconcilable, sometimes they are not. Consequently, the task of the land lawyer is to discern what people want to do with the land available to them, before deploying the legal rules to enable those people to achieve their goals. It is important when studying land law, and especially at the beginning of those studies, not to allow its sometimes dry and legalistic façade, created by its artificial language and its technical concepts, to conceal this fundamental issue: the land law of England and Wales is ultimately about sharing out the enjoyment of part of a small island on the north-west edge of Europe.

Land law has been developing ever since people got ideas about having rights over certain places, probably beginning with the cultivation of crops. In England (and Wales), the long process of its development has included periods of gradual change, and more dramatic transitions such as those heralded by the Norman conquest of 1066, the property legislation of 1925 and, most recently, the Land Registration Act 2002. Even when the changes have been sudden, lawyers have continued to use and adapt the words and ideas of their predecessors. Consequently, while English land law is a thoroughly contemporary subject concerned with realities of daily life and existence, it retains much of its feudal roots and language. Perhaps this is why this branch of law can seem obscure. It does mean that the student of land law needs to be something of a historian. Sometimes, understanding the contexts within which a particular doctrine has developed can be a valuable step towards understanding how that doctrine works (often more effectively than one might think) to meet the needs of twenty-first century landowners and land users. It also means that it can be helpful, especially at the start, to treat the study of land law like learning a new language. With a good knowledge of the vocabulary and a growing grasp of the grammatical principles, land law need not be as daunting as it at first seems.

The more you read, especially cases, but also articles and textbooks, the more familiar the vocabulary becomes; and, contrary to how it might appear at the outset, a coherent structural framework to much of the subject will begin to emerge.

The vocabulary of land law

One of the factors that seems to deter many students approaching land law for the first time is its language: the sheer number of unfamiliar technical terms alone can seem overwhelming. They need not, however, be so great a problem if faced up to from the outset. When encountering a technical term, especially for the first time:

pause; consider the word, in its context; decide if you are confident that you have at least a provisional understanding of what it means;

if not, look the word up (in the Glossary at pages xxxiii to xi of this book, for example, or in a printed or online legal dictionary);

record the word and your provisional understanding of its meaning in a notebook or an easily accessible electronic form;

then continue to read, ready to let what you read modify, deepen or revise your understanding of the term.

It is important to realise from the beginning of one’s studies that English land lawyers tend to be principally, but not exclusively, concerned with various rights to land, called ‘interests in land’, rather than with the physical land itself. They might talk about someone ‘owning land’ or ‘owning property’, but really they mean someone owning an interest in the land, or, more technically, having property in the land. These interests (the ‘property’) are not the land itself (the earth and the buildings), but abstract concepts, such as the freehold and the lease. So, as Stanley Burnton J explains (R (on the application of the Lord Chancellor) v Chief Land Registrar [2006] QB 795 (QB), [25], when ownership of a building is transferred from one person to another:

The building has not moved. What is transferred by a transfer of property is the bundle of rights and obligations relating to that building.

The different types of abstract interest in land recognised by English law are introduced in Chapter 2 and the most important are considered in more detail in Part III of this book.

The first thing to do when studying a particular interest in land (or any aspect of land law) is to grasp the definition thoroughly. That means asking:

what does it mean; and

how do I recognise it?

This helps to avoid two of the most depressing things that can happen to land law students. The first is staring at a tutorial or assessment question without having any idea of what it is about. The second (possibly worse) is recognising what the question is about, but feeling incapable of writing anything down. If in doubt, start by identifying the interests in the land.

Handling the interests in land can be compared to playing a game like chess: there are various ‘pieces’ (corresponding to the various interests in land) which can be moved about according to strict rules. Unfortunately for the new student, English land law is often played to not one but two sets of rules simultaneously. The relationship between the two sets of rules, those of law and those of equity, is introduced in Section 1.3.2. Alternatively, the rules which govern the various interests in land can be compared to a complicated machine: moving one lever, or adjusting one valve, will have a significant effect on what is produced. The owner of an interest in land has limited freedom of action, but one small change in their position can affect the relative value of other interests in the same land. In practical terms, the complicated connections within the machine mean that one part of the subject cannot be fully grasped until all the others have been understood. In other words, there is no single starting place when it comes to beginning the study of land law. Instead, it is necessary to watch the machine, trying to discern how it works, how one piece relates to the other pieces, until the connections become clear. It is useful, from the beginning, to ask, ‘What do I think would happen if … ?’; ‘If one lever is m...