15. The Priority Triangle

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.

13. Regulating Co-Ownership: The Content Question

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 the internal regulation of co-ownership. It is concerned with the content question: the rights enjoyed by co-owners, including their rights and duties in relation to each other, and whether one co-owner can insist on a sale of the land against the wishes of another. The joint tenancy and the tenancy in common are two forms of co-ownership. The chapter explores the operation of survivorship in respect of a joint tenancy and the process through which a joint tenant may become a tenant in common through severance. Co-ownership is terminated once there is a sole legal and equitable owner. The process of partition can also terminate co-ownership. In both forms of co-ownership, the rights and duties of the co-owners are governed through the imposition of a trust of land, regulated by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). TOLATA 1996 contains a procedure enabling disputes relating to land held on trust to be determined by an application to court. The chapter considers how the courts have resolved disputes between the beneficiaries as to whether land should be sold. The chapter also considers the relationship between TOLATA 1996 and ‘home rights’ (of occupation) conferred by the Family Law Act 1996.

7. Personal Rights: Licences

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 presents a discussion on licences. Licences can be grouped into a number of categories, including bare licences, contractual licences, estoppel licences, statutory licences, and licences coupled with an interest. The key feature of a bare licence is that A is under no duty to B not to revoke the licence. The distinction between a bare licence and a contractual licence turns on the question of whether A is under a contractual duty to B. An estoppel licence, as well as a statutory licence, is similar to a contractual licence: the key difference is the source of A’s duty to B. The concept of a ‘licence coupled with an interest’ has been applied by the courts as a way in which to develop the remedies available to B when B has a contractual licence, whilst at the same time technically respecting past decisions that limited those remedies. The chapter considers whether particular forms of licence ought to count as equitable interests in land, and also examines the means by which a licensee may be protected against a third party, even if the licence itself is only a personal right.

5. Legal Estates and Legal Interests

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.

3. Registration

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 consists of an introduction to one of the core parts of modern land law: land registration. It examines some of the key aims of the Land Registration Act 2002, and considers in particular the means by which the Act protects registered parties.

26. Lender’s Rights and Remedies

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 concentrates on the rights and powers conferred upon the lender to enforce its security over land. A lender’s rights and remedies arise from the nature of its security, the powers implied by the Law of Property Act 1925, and any express powers. The lender’s right to take possession originated at common law but is now conferred by s 87(1) of the 1925 Act. The lender’s power of sale and to appoint a receiver are implied by s 101(1)(i) and (iii) of the 1925 Act respectively and can only be exercised if the borrower has defaulted. The duties that a lender or receiver owes when selling the mortgaged property are explained, as well as the position of a purchaser from a lender or receiver where there has been a breach of duty.

23. Freehold Covenants

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 how certain covenants relating to land between freehold owners can overcome the normal privity of contract rule, and can be enforced by and against third parties. Restrictive covenants significantly control land use, and supplement and complement public planning laws. The burden of a negative covenant will not run at common law but may run in equity by virtue of the rule in Tulk v Moxhay. The benefit of a restrictive covenant will run if it is: expressly assigned; annexed to the land; or subject to a building scheme. The Lands Chamber of the Upper Tribunal has jurisdiction under s 84 of the Law of Property Act 1925 to modify or extinguish restrictive covenants. Reform recommendations offer a final acknowledgement that both negative and positive covenants affecting land should be a ‘genuine proprietary interests’ rather than ‘a peculiar species of personal contract’.

22. Easements

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 is concerned with easements. An easement is the proprietary right to enjoy limited use of the land of another, which may exist in both positive and negative form. To constitute an easement, a right over the land of another must display certain characteristics. If these characteristics are not present, the right over the land of another is merely a personal right. An easement may be created by express, implied, or presumed grant. As a proprietary right, an easement is not easy to extinguish but in the case of freehold land, easement will be extinguished where the dominant and servient land come into common ownership, and an easement attached to a lease may sometimes be extinguished upon the termination of that lease.

10. Proprietary Estoppel

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 is concerned with proprietary estoppel. Proprietary estoppel is a means by which a party (B) can gain some protection against an owner of land (A), even if B has no contract with A and even if A has not formally given B a property right in relation to A’s land. That protection consists of A coming under a duty to B. Proprietary estoppel is therefore also a means by which B can obtain an equitable interest in A’s land. It is noted that proprietary estoppel is very different from other forms of estoppel; so different that the term ‘estoppel’ is positively misleading. The chapter considers how the courts determine the extent of any right arising through proprietary estoppel, and it also examines the impact of such rights on third parties.

4. Human Rights and Land

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 examines the mechanics of how the Human Rights Act 1998 (HRA 1998) brings human rights home. It then explores Art 1 of the First Protocol (protection of possessions) and Art 8 (respect for the home). Article 14 (protection from discrimination) and Art 6 (right to a fair trial) are also outlined. Whilst compliance with Art 1 of the First Protocol has required little change in domestic law, a recent string of cases concerning compliance with Art 8 and repossession of the home has demonstrated that a new approach is necessary to comply with human rights norms.