18. Proprietary Claims and Remedies

2019 ◽  
pp. 853-923
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Property Rights ◽  
Fiduciary Duty ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses proprietary claims and remedies, which are based upon a claimant’s property rights. Proprietary claims require the claimant to have a right that can be identified in property in the defendant’s hands either through the process of following or that of tracing. Where a breach of trust or fiduciary duty has involved the transfer of property in which the beneficiary or principal has an equitable proprietary interest, the beneficiary or principal may wish to bring a claim to assert his or her proprietary interest in assets that are now in the hands of another person. Such claims are founded on the beneficiary’s equitable interest in the property, and so are properly characterized as proprietary claims. However, although the claim is founded on the beneficiary’s proprietary rights, the remedy awarded is not necessarily a proprietary one.

25. Security Interests in Land

2021 ◽  
pp. 967-996
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Security Interest ◽  
Academic Debate ◽  
Shared Ownership

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the use of land (or legal and equitable property rights relating to land) as security for the repayment of money by a borrower to a lender. It also describes charging orders, the use of which increases in the context of the recession. There are four types of security interest: the pledge; the lien; the mortgage; and the charge. The borrower holds the equity of redemption under a classic mortgage by conveyance or sub-demise, but its continued relevance under the predominant legal charge by way of mortgage is questionable. It is observed that the domestic lending market has seen the development of Islamic mortgages, the emergence of shared-ownership schemes, and equity release schemes.

15. The Priority Triangle

Land Law ◽  
2018 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Property Right ◽  
Basic Rule ◽  
Basic Principles ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter addresses the question of when C can have a defence to B’s pre-existing property right. It covers the basic principles that apply when answering the priority question. It examines how a court determines which of two competing property rights arose first. It also examines exceptions to the basic rule that B’s property right, where it arises before C’s property right, will take priority.

5. Legal Estates and Legal Interests

Land Law ◽  
2018 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
General Question ◽  
Crucial Importance ◽  
Land Law ◽  
Numerus Clausus ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter investigates legal property rights in land. The numerus clausus (or ‘closed list’) principle is of crucial importance when addressing the content question of legal property rights in land. The Law of Property Act 1925 (LPA 1925) creates a distinction between legal estates and legal interests. As a result of s 1 of LPA 1925, there are now only two permissible legal estates in land. The chapter then explores the content of a freehold and of a lease, and covers the vital question of why the LPA 1925 imposed this limit on the types of permissible legal estate in land. The facts of Hill v Tupper and Keppell v Bailey offer particular examples of a more general question that land law has to tackle when deciding on the content of legal interests in land.

14. Registered land and priorities

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Third Party ◽  
Priority Rules ◽  
General Law ◽  
The Creation ◽  
Personal Liability ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the defences against pre-existing property rights that are available to a purchaser of registered land. It is concerned with priority rules in registered land. The LRA 2002 offers a distinct set of priority rules for one category of transaction: a registrable disposition of a registered estate for valuable consideration. The chapter analyses the priority rules applicable to such transactions, including the effect of limitations on owner's powers, entry of a land registry notice and the category of ‘overriding interests’, in relation to which there is no defence. The chapter concludes by examining the policy of the LRA 2002 to transactions that are tainted by fraud or wrongdoing that is not such as to invalidate the transaction. Such transactions may result, under the general law, in the imposition of personal liability on the registered proprietor, or the creation of new direct rights in favour of a third party.

13. Unregistered land and priorities

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Legal Rights ◽  
Priority Rules ◽  
Fundamental Distinction ◽  
Bona Fide ◽  
Good Conscience ◽  
The Right ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the defences against pre-existing property rights that are available to a purchaser of unregistered land. It is concerned with priority rules in unregistered land. The fundamental distinction in unregistered land is between legal and equitable rights. Generally, there is no defence against pre-existing legal rights. In respect of equitable rights, a defence is available for a bona fide purchaser for value without notice of the right. The defence is founded on equity's ideas of acting in good conscience. The Land Charges Act 1925 (LCA 1925) provided a system for the registration of a limited number of interests in unregistered land. It had been replaced by the LCA 1972. The 1972 Act enables a number of equitable interests, and one legal interest, to be recorded on a register against the name of the holder of the legal estate. In respect of property rights registrable as land charges a purchaser may have a defence of non-registration. The doctrine of notice does not apply in respect of such rights..

6. Equitable interests

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Third Parties ◽  
Property Right ◽  
Personal Rights ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the content of equitable interests in land, and considers how such rights differ from each of personal rights and legal estates and interests. Equitable interests in land are capable of being asserted against third parties. They have a power lacking in personal rights. The content and acquisition questions are answered differently depending on whether B claims a legal or equitable property right. It is noted that equitable interest in land depends on A's coming under a duty to B. Moreover, as observed, equitable property rights are conceptually different from legal property rights.

1. What’s Special About Land?

2021 ◽  
pp. 3-24
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Private Property ◽  
Land Law ◽  
Private Property Rights ◽  
Legal Rules ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter illustrates the significance of land and, hence, of land law. It concentrates on the features that make land special and the distinctive legal rules produced by those features. The chapter explains that the focus of land law is on private property rights to use land. It then demonstrates some important themes of land law by examining an important land law case involving a dispute between an occupier of land and a bank. It is noted that the special features of land sharpen the court’s dilemma when deciding between competing claims to the use of land. It also considers the differing judicial philosophies that may influence a court’s approach to resolving this dilemma.

1. What’s Special About Land?

Land Law ◽  
2018 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Land Law ◽  
Legal Rules ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter illustrates the significance of land, and hence of land law. It concentrates on the features that make land special and the distinctive legal rules produced by those features. The chapter explains that the focus of land law is on private property rights to use land. It then demonstrates some important themes of land law by examining an important land law case involving a dispute between an occupier of land and a bank. It is noted that the special features of land sharpen the court’s dilemma when deciding between competing claims to the use of land. It also considers the differing judicial philosophies that may influence a court’s approach to resolving this dilemma.

16. Priorities in Registered Land

2021 ◽  
pp. 579-618
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Property Rights ◽  
Priority Rules ◽  
Land Registration ◽  
General Law ◽  
The Creation ◽  
Personal Liability ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the defences against pre-existing property rights that are available to a party who acquires for value and registers a right in registered land. The Land Registration Act 2002 (LRA 2002) offers a distinct set of priority rules for one category of transaction: a registrable disposition of a registered estate for valuable consideration. The chapter analyses the priority rules applicable to such transactions, including the effect of the entry of a land registry notice, the category of ‘overriding interests’ (property rights immune to a lack-of-registration defence), and limitations on the powers of a registered owner. The chapter concludes by examining the policy of the LRA 2002 to transactions that are tainted by fraud or wrongdoing that is not such as to invalidate the transaction. Such transactions may result, under the general law, in the creation of new direct rights which may, for example, impose personal liability on a registered party.

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