Last edited 03 Mar 2016

Land law

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Contents

[edit] Land law and conveyancing

  • Land law is concerned with the rights of a landowner in or over his own land and the rights (or 'interests') that others may have over that land.
  • Law of conveyancing is concerned with the mechanics of the creation and transfer of rights in and over land, usually, but not necessarily, pursuant to a contract between a seller and a purchaser.

[edit] Unregistered land

  • All land in England and Wales must be registered consequent on transfer of ownership and in time unregistered conveyancing will disappear.
  • Most equitable interests (other persons' right in the land) are registrable as land charges under the Land Charges Act 1972.

[edit] Registered land

  • Over 90% of titles are registered.
  • The actual title is registered. Eliminating the need for title deeds.
  • Details of many (but not all) interests affecting the land will appear on the Register against the land itself, not against the name of the landowner at the time the encumbrance was created.
  • Transfer of the land is effected by registering the purchaser as the new 'registered proprietor'.

An intending purchaser of registered land should:

  • Inspect the Register.
  • Inspect the land itself, because certain rights such as easements, squatters' rights, local land charges etc may not appear on the Register.
  • Irrespective of whether the land is registered or unregistered, there are Local Land Charges which are regulated by the Local Land Charges Act 1975 and registered separately in a register kept by all local authorities. These include:
  1. Preservation instructions as to ancient monuments.
  2. Lists of buildings of special architectural or historic interest.
  3. Planning restrictions.
  4. Drainage schemes.
  5. Charges under the Public Health and Highways Acts.

[edit] The Extent and Meaning of 'Land' and Intrusions upon it

[edit] Meaning

'Land in English law includes not only the soil but also:

  • Any buildings, parts of buildings, or similar structures.
  • Anything permanently attached to the soil.
  • Rights under the land.
  • Rights above the land to such a height as is necessary for the ordinary use and enjoyment of the land and the structures upon it.
  • Easements.

Land is also defined in the Law of Property Act 1925:

'Land includes land of any tenure, and mines and minerals...buildings or parts of buildings...and other corporeal hereditaments; also...a rent, and other incorporeal hereditaments, and an easement right, privilege, or benefit in, over, or derived from land.'

Corporeal hereditaments is an archaic term for the land and fixtures, whilst incorporeal hereditaments refers to the invisible interests in land such as mortgages and easements (such as, rights of way).

[edit] Trespass

  • Any unjustifiable intrusion by one person upon the land in the possession of another is trespass - a 'tort'.
  • It is likewise a trespass to place anything on or in the land in the possession of another.
  • The trespass does not have to involve damage to the plaintiff's property to be actionable as a tort.
  • If construction work is likely to necessitate an incursion on to neighbouring land, the client must come to an arrangement with the landowner, usually in the form of a contractual licence.
  • If a permanent incursion is contemplated, it may be better to negotiate an easement.
  • In the absence of any easements, restrictive covenants or other binding agreements, a person is generally free to build anywhere on their land, subject to planning issues.
  • However, the development may give rise to a claim by a neighbour in 'nuisance' where there is an unjustifiable interference with the neighbouring landowner's use and enjoyment of his own land through excessive dust or noise.
  • If a landowner has an easement over adjacent land any interference with it by the owner of the burdened land will not constitute a trespass but will be a nuisance, but only if it prevents the practical and substantial enjoyment of the easement.

[edit] Licences

  • A neighbour may give another person permission to use their land by means of a 'contractual licence'.
  • A licence is permission to do something that would otherwise be unlawful.
  • A bare licence is permission to enter the land given gratuitously without any counter-benefit to the landowner giving permission.
  • It is revocable at any time by the licensor, and on such revocation, the licensee becomes a trespasser, although they are entitled a reasonable time to enable them to leave the land.
  • A contractual licence is granted for some counter-benefit, usually a fee.
  • Whether it can be revoked depends upon the contract.

[edit] Boundaries

  • A boundary has been defined as the imaginary line that marks the confines or line of division or two contiguous parcels of land.
  • Boundaries are fixed by: proven acts or the respective owners, statutes or order of authorities having jurisdiction, or by legal presumption.

[edit] Easements

  • Easements are the rights that one owner of land may acquire owner the land of another.
  • There must be a dominant and a servient tenement.
  • The easement must benefit the dominant tenement to which it will become attached.
  • The two tenements must not be owned and occupied by the same person.
  • The easement must be 'capable of forming the subject matter of a grant', that is, of being created by deed ie sufficiently well defined, certain and limited in scope so as to qualify as an easement.
  • There are well-established categorise of easement, but new rights can become recognised as being capable of being granted.
  • Against this, certain rights cannot exist as easements: a right to a view; or privacy; to a general flow of air; to have the property protected from the weather; and a general right to light (as opposed to a right through a defined aperture).
  • Positive easement: enables the dominant owner to perform some act upon the servient tenement.
  • Negative easement: allows the dominant owner to prevent the servient owner from doing something on their land.

Easements may be acquired by:

  • Express grant or reservation: a landowner may by deed or written contract expressly grants an easement over their land in favour of a neighbouring landowner, or expressly reserves to themself an easement.
  • Implied reservation: when the parties to a transaction concerning land have not expressly mentioned easements reserved to burden the part sold. There are two situations where the easements will be treated as if they were deliberately reserved for the benefit of the land retained - easements of necessity (an easement without which the vendor's retained land cannot be used at all), or an easement in the common intention of the parties (an easement that both parties accept should exist).
  • Implied grant: similar to above, but when no easements are expressly granted to the purchaser for the benefit of the land sold.
  • Prescription: long use without force, secrecy or permission can give rise to an easement. Use for 20 years is normally accepted.

[edit] Extinguishment of easements

  • Apart from an express release by deed, the most important method of extinguishing an easement is when the dominant and servient tenement come into the same ownership and possession.

[edit] Types of easement

  • Rights of way: may be restricted in frequency and type of use.
  • Rights of support: the right of support for land by other land has been distinguished from an easement, but it is possible for one building to acquire an easement for support against another after a period of 20 years.
  • Rights of light: rendered of secondary importance by daylighting regulation under planning controls, and is only in respect of some definite opening and as necessary for 'ordinary purposes'. A Local Land Charge can be registered indicating the presence of a theoretical wall of stated dimension in such a position as to prevent an adjoining owner from claiming an absolute right of light after 20 years of uninterrupted use.

[edit] Restrictive covenants

  • A restrictive covenant is a binding obligation that restricts an owner of servient land in their use and enjoyment of that land.
  • Typical examples of restrictive covenants: not to build above a given height or in a given place; restricting the user of the land to given purposes
  • It is in substance negative.
  • It is made between the covenantor (the person who is making the promise and whose land is burdened) and the coventantee (the person who can enforce the promise).
  • That the parties intend the burden of the covenant to run with the covenantor's land so as to bind it not only to the covenantor but also their successors in title
  • It is an equitable interest in land and therefore requires registration as a land charge in unregistered land or is protected by registering a notice on the Register of Title for registered land
  • Power is given to the Lands Tribunal under the Law of Property Act 1969 for the discharge or modification or any covenant if the Tribunal is satisfied that:
  1. changes in the neighbourhood make the covenant obsolete;
  2. or that the restriction does now not secure practical advantages of substantial value to the person entitles to its benefit;
  3. or is contrary to public policy

[edit] Landlord and tenant - repair covenants

  • Consultants are frequently asked to prepare a 'schedule of dilapidations' at the start or end of a lease.
  • This is used as the basis of assessing the extent of the repairing obligations of the parties under the lease.
  • They should find out the terms of the lease so that they are clear which portions of the building come within the repair covenant.
  • When a landlord and tenant cannot agree about the extent of the damage or the extent of the responsibility for making them good, their dispute may have to be resolved in the courts, in which case the schedule of dilapidations becomes evidence.

[edit] Mortgages

  • The alteration to property will alter the value of the mortgagee's (lender's) security
  • For this reason most mortgages contain covenants requiring the borrower to obtain consent to any proposed works.