10. Leases

This chapter discusses the nature, creation, and forms of leases. The leasehold estate is one of the two possible estates in land. The lease is, essentially, consensual exclusive possession of land for a limited duration. The purposes to which leases are put range from very short-term occupation agreements to leases lasting hundreds of years. In order to create a valid lease, the formalities which are required will depend upon the length of the lease which the parties are attempting to create and the type of lease to which they wish to give rise, as well as the nature of the rights which they currently have. There are different forms of leases: periodic tenancies; tenancies at will; and the Bruton tenancy. The chapter then assesses how the relationship between landlord and tenant is managed both during and after the contractual term of the lease. It also looks at one of the most flexible and useful aspect of leases, the ability to sublet, to create concurrent leases, and the nature of the reversionary interest during the currency of the lease.

14. Estate Contracts, Options to Purchase, and Rights of Pre-Emption

This chapter addresses estate contracts, options to purchase, and rights of pre-emption. ‘Estate contracts’ is a generic term given to contracts relating to the intended transfer of estates in land, i.e. the freehold and leasehold estate. The consequence of an estate contract varies depending upon the kind of interest which it is intended will be created and the precise nature of the agreement reached between the parties. This can lead to some conceptual difficulties. Meanwhile, options to purchase and rights of pre-emption are two kinds of estate contract. Both involve an agreement between a freehold or leasehold proprietor and a potential purchaser in relation to that estate. An option to purchase entitles its holder to demand that the proprietor sell that estate to them, usually within a defined time period, for a pre-determined or determinable price. The right of pre-emption is, in effect, a right of first refusal. It does not allow its holder to force the proprietor of the estate in land to sell, but means that if that person does decide to sell, it must first be offered to the holder of the pre-emption right.

9. Freehold Estate

This chapter explores English land law's understanding of the concept of ‘ownership’ of land as developed through the freehold estate. As the freehold is the most extensive possible right in relation to land, it is important to know what it entails. The chapter first looks at the modern understanding of what freehold owners are entitled to do in relation to their land, before considering the space encompassed within the freehold title. It also studies the rights of re-entry and reversion which form the residual entitlement of a freehold once possession has been granted to another. In unregistered land, relativity of title is used to determine the relationship between multiple freeholds. In registered land, while the principle of relativity of title is still crucially important when dealing with multiple ‘off-register’ possessors, where title is registered, the Court of Appeal has suggested that such titles rank equally until the register is changed. The chapter then assesses how freeholds are transferred, and describes the concepts of the commonhold and flying freehold. It concludes by explaining the process of termination of the freehold estate.

6. Adverse Possession

This chapter focuses on adverse possession, which is the obtention of title to land by means of possession without permission. It is the natural and logical consequence of the combination of the principle of relativity of title and of limitation (time limits) on actions. The chapter then analyses the rules relating to adverse possession, considering both unregistered land and registered land. Adverse possession is one of the few areas where the unregistered land rules are still regularly taught. The chapter also looks at the special situation which emerges when the rules on adverse possession interact with leases. Moreover, it examines the relationship between the adverse possession rules and criminal law. Finally, the chapter explores the justifications or explanations behind adverse possession, including the relationship between these rules and human rights.

4. Formalities and the Creation of Rights in Land

This chapter examines the formality rules in relation to transactions involving land, which are essential to the operation of the land law system in practice. Formality rules play an important role in protecting vulnerable individuals; in ensuring caution; and in preserving the essence of an agreement should any future disputes arise. The chapter then details the formalities required to create an enforceable contract in land; a deed; and a valid disposition of an equitable interest. It also explains that there are different formality rules relating to a declaration of trust and to the transfer of interests arising under a trust. A failure to use these formalities does not give rise to homogenous consequences. Rather, for each of these categories, there are subtly different effects arising from a failure to take all the formal steps required.

3. Registered and Unregistered Land

This chapter discusses one of the most important components of the land law system: the registration of title to land. This is the system whereby rights in land are recorded on a publically available register. The chapter first examines some of the history of English land law in the 20th and 21st centuries, considering the 1925 reforms and the Land Registration Act 2002. It also describes what the land register is, and how it fits into the system of rights in land. Land registration essentially contains three guiding rules. Certain rights must be registered to be created. Once registered, the effect of such rights is determined by their registered status. The relationship between the right-holder and third parties who later acquire rights in, or transact in relation to, the relevant land is, again, determined by registration. The register therefore has three functions: it controls creation of rights, the effects of such rights, and the interaction between rights. In this sense, registration fundamentally determines how land law works. The chapter then looks at the principles of conveyancing in unregistered land.

17. Property Law and Human Rights

This chapter reflects on the interaction between property law and human rights law. Property law and human rights can interact in a number of different ways. The major division distinguishes those cases where human rights arguments are made to ‘bolster’ an existing property law-based argument, and those where the human rights argument is made to attempt to limit the scope of a property right. Thus, one can see the rules of property law and human rights working together, or they can be in conflict. The chapter first identifies the sources of human rights in English law, and then considers which rights are particularly important in relation to property law. It also looks at the mechanics by which key human rights interact with property law, and examines the question of horizontal effect in that context. Finally, the chapter addresses how human rights arguments have had influence in particular areas of land law, focusing on adverse possession, leases, actions for possession against trespassers, and mortgages.

8. Proprietary Estoppel

This chapter addresses proprietary estoppel, which is one of the land law doctrines which allows for the creation of rights in land without a written contract or other formal document. It arises when a person (the promisor) makes a promise to another (the promisee) in relation to their land, and then attempts to go back on that promise in circumstances where it was unfair to do so. Given the general policy of formality, with its associated benefits of certainty and clarity, one must consider the rules relating to proprietary estoppel from the perspective not only of when proprietary estoppel generates rights in land, but also why it does so. This is particularly important in relation to estoppel since it represents a general and potentially broad exception to the formality rules discussed in the fourth chapter. There are three forms of proprietary estoppel: estoppel by representation, estoppel by acquiescence, and estoppel by assurance or promise. The chapter then discusses the consequences of estoppel arising in terms of remedies and effects on third parties. It also examines the relationship between estoppel and formalities, and estoppel and constructive trusts.

1. Introduction—Principles and Themes of Land Law

This introductory chapter provides an overview of the land law system. The operation of the land law rules can be split into three central questions: first, the content and nature of individual rights in land — both ownership-estates and interests in another's land; second, the method of creation and transfer of these individual rights; and third, the interaction between these rights and the rights of others. The law's answer to these questions is shaped by the social context within which the rules operate, and by the principles of land law. These principles are certainty; sensitivity to context; transactability; systemic and individual effects; and the importance of recognising social effects. The chapter then considers the logic of the land law system. Understanding this logic begins with understanding the terminology, and this terminology is nowhere more unhelpful but essential than in the distinction between legal and equitable rights, and in the concept of ownership.

16. Co-Ownership

This chapter studies the trust of land, and how this legal structure is used to manage co-ownership of land. It first describes the nature of interests under a trust of land, and the rights and obligations for trustees and beneficiaries which arise as a result of the creation of such a trust. The chapter then details the different forms of concurrent co-ownership which can exist in relation to land, looking at joint tenancies and tenancy in common as well as the process of severance. Since co-ownership cannot exist without a trust, it is useful to have understood trusts generally before examining it as a tool to manage co-ownership situations. Finally, the chapter assesses the regulation of disputes between trustees, beneficiaries, and third parties. Partly these disputes relate to questions of priority, and so it is useful to read this chapter in conjunction with the previous one concerning the general priority rules.