1

AN INTRODUCTION TO
LAND LAW
Summary
I

II

Property Rights
A Property Rights and Personal Rights
B Third Parties and Property Rights

4
4
4

Real Property

III The Meaning of Land

A Distinction between Corporeal and
Incorporeal Hereditaments
B Fixtures

IV Development of Modern
Land Law
A Feudal Basis of Land Law.
Tenures and Estates
B The Significance of Possession
within the Land Law
C Common Law and Equity

D Legislative Reforms of Nineteenth

Century and the Impetus to
the 1925 Reforms
E Law of Property Act 1922.
Assimilation of Real and
Personal Property
F Legislation of 1925.
Consolidating Acts
G Further Developments in
1996 and 2002

6
7
8
12
12
13
14

Outline of Rights in Land and

their Creation and Transfer
A Estates and Interests in Land
B Creation of Estates and Interests
C Transfer of Estates and Interests

VI Land Law and Human Rights

15

18
18
19
20
20
21
21
22

In this book we are concerned with the law of real propertyland law. There are a
number of separate aspects to this that should fi rst be clarified, in order that the
detailed discussion in the following chapters can be understood: fi rst, the concept
of property rights, as opposed to purely personal rights; and then, within the law of
property, how the law defi nes real property, and the meaning attributed by the law
to the word land. We then give an outline of the development of the modern law
to illustrate the importance of setting it in its historical context; and we outline the
kinds of right that are recognised in English law as real property rightsestates and
interests in landand the mechanisms by which they are created and transferred;
and the interaction between land law and the law on the protection of human
rights.

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AN INTRODUCTION TO LAND LAW

i property rights
The notion of property, or property rights, is deceptively simple, and cannot be fully
treated here.2 We shall confine ourselves to drawing attention, by way of introduction,
to matters that are relevant to an understanding of the estates and interests in land,
and their creation and transfer, which are discussed in detail later.

property rights and personal rights

Property rights are to be contrasted with personal rights. This contrast, in English
law, can be expressed in the same essential terms as were developed in Roman law:3
property rights are rights in rem; personal rights are rights in personam. To say
that one has a property right in relation to land is to say that one has a right over, or
in respect of, the land itself. A personal right, however, is a right against a person,
generated by the act of the person or imposed on him by the law, but in every case the
right is againstand so the correlative duty is owed bythe particular individual
concerned. Obligations arising from contract, for example, are personal: the reason
that the defendant is bound to the claimant is because he has (expressly or impliedly)
undertaken the burden of the obligation.

third parties and property rights

The significance of the distinction between personal rights and property rights, for our
purposes, lies in the case where third parties become involved. As Lord Wilberforce
said:4
Before a right or an interest can be admitted into the category of property, or of a right
affecting property, it must be definable, identifiable by third parties, capable in its nature of
assumption by third parties, and have some degree of permanence or stability.

This emphasises the link between property rights and third parties, and the focus is
on the burden of rights affecting property. A contract creates a personal relationship
in law between the contracting parties, and although English law allows the benefit of
a contractual right to be transferred by assignment,5 a third party cannot generally be
bound by an obligation in a contract without himself accepting itand in that case he
is bound by his own act rather than simply as successor to the original obligor under
2 Lawson and Rudden, The Law of Property (3rd edn, 2002); Bright and Dewar, Land Law Themes and
Perspectives (1998), chs 1 (Gray and Gray), 18 (Birks); Tee, Land Law Issues, Debates, Policy (2002), ch 1
(Dixon); Harris, Property and Justice (1996); Honor, Oxford Essays in Jurisprudence (ed Guest, 1961), pp 107
ff; Rudden, Oxford Essays in Jurisprudence (3rd series, eds Eekelaar and Bell, 1987), pp 239 ff.
3 Nicholas, Introduction to Roman Law (1962), pp 99103; Bright and Dewar, above, p 472 (Birks).
4 National Provincial Bank Ltd v Ainsworth [1965] AC 1175, 12478; p 943, below.
5 Anson, ch 22. Even so, this involves a recognition of the benefit of a contractual right as having
proprietary characteristics: it is a chose in action: ibid, pp 6613; LPA 1925, s 136(1).

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ii real property

the contract.6 By contrast, proprietary rights are inherently capable of both benefiting
and binding parties who were not involved in their original creation. The fundamental
point, therefore, is thatto take the example of land lawa property right is either the
right to the land itself (in some sense, the ownership of the land); or a right owned by
a third party in or over that land (for example, an easement), which means that it is a
right that is capable of binding the owner for the time being of the land: his acquisition
of the land brings with it the burdens that are in law recognised as attaching to the
land.
As we have already said, this is only an introductiona starting-point for a further
analysis of the notion of property rights as recognised by English law. In some respects
the simplicity of the notion of rights in land as rights in rem is complicated by certain
peculiarly English notions7 of real property rights, which are explained by the historical
development of the land law: in particular, by the fact that the common law does not
recognise absolute property rights in land, but has developed the doctrine of estates
in land;8 and that equity developed the protection of property rights through the
concept of the trust.9 Not every successor in title to the land will necessarily be bound
by every right attached to the land.10 And an interest in the land can have limits on its
alienability.11 But the underlying principle still holds. The principal concern of the law
of propertyand in particular land lawis with what is meant by saying that a person
is the owner of the property; what other rights of third parties are recognised by the
law as being capable of existing in or over that property; and in what circumstances a
successor to the owner is bound to give effect to those third-party rights.

ii real property
English law draws a technical distinction between real property and other property
(personal property), a distinction grounded in history but that must still be understood
in order to understand the language and concepts of modern land law.12
The common law devised certain forms of action to enable rights to be enforced. As
we shall see later,13 in the early law the actions by which property could be specifically

7 Contrast Roman law and modern civil law systems; below, p 55.
Ibid, pp 6756.
9 Below, pp 1415 and Ch 3.
Below, pp 1213 and Ch 2.
10 Below, pp 8083, noting that an equitable estate can be characterised as a right in personam, since
the category of persons who are bound by it are limited by the doctrine of the bona fide purchaser for value
without notice. For the use of registration to supersede the doctrine of the bona fide purchaser in the modern
law, see pp 2122 and Ch 5, below.
11 But a total restraint on alienation is inconsistent with the conception of ownership: p 621, below; Re
Brown [1954] Ch 39, M & B p 306.
12 Continental European systems, following Roman law, typically distinguish between immovable
property and movable property; English law draws that distinction not in domestic law but in the context
of private international law (confl ict of laws): Dicey, Morris & Collins, The Conflict of Laws (14th edn, 2006)
paras 22- 00422- 007.
13 Below, p 49.
8

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AN INTRODUCTION TO LAND LAW

recovered were known as the real actions. But only land could be specifically recovered
by such actions; a person who was dispossessed of a chattel could bring only an action
for damages for the wrong committed by the dispossession, and could not recover the
chattel itself.14 Land, the subject of the real actions, therefore came to be known as
real property.
It should be noted, however, that leases were not included within real property,
principally because the real actions were not extended to allow the recovery of the land
subject to the lease, but other actions were instead given to the tenant.15 The interest
of a tenant under a lease was therefore classed as personal property, rather than real
propertyalthough because of its obvious attachment to the land it was called a chattel
real. But within the technical distinction of the common law between real property
and personal property the leasehold estate constitutedand still today technically
constitutesan interest in personal property. Until the legislative reforms of 1925 this
distinction was critical for such things as the descent of property on intestacy and the
order in which assets were applied for the payment of a testators debts.16 However,
these distinctions between real and personal property were largely eradicated by
the 1925 legislation, and even though the leasehold estate is still technically not real
property we naturally consider it in detail in this book, of which the focus is estates
and interests in land.

iii the meaning of land

Before we can consider the estates and interests that can exist in land, however, we
must first explain what in law constitutes land. The following is the definition for the
purposes of the Law of Property Act 1925:17
Land includes land of any tenure, and mines and minerals, whether or not held apart from
the surface, buildings or parts of buildings (whether the division is horizontal, vertical or
made in any other way) and other corporeal hereditaments; also a manor, an advowson,
and a rent and other incorporeal hereditaments, and an easement, right, privilege, or
benefit in, over, or derived from land . . .

14 Even in the modern law the normal claim for wrongful dispossession and retention of a chattel is in
tortthe tort of conversionand damages remain the primary remedy although the defendant has the
choice between paying damages and returning the chattel, and a court may order the return of the chattel:
Torts (Interference with Goods) Act 1977, s 3 (replacing a similar provision for the tort of detinue (now
abolished) first introduced by Common Law Procedure Act 1854, s 78). Specific recovery of chattels remains,
however, the exception: Bridge, Personal Property Law (3rd edn, 2002), pp 767.
15 Below, p 58.
16 Below, pp 11718.
17 S 205(1)(ix), amended by TLATA 1996, s 25(2), Sch 4. Cf the defi nitions in SLA 1925, s 117(1)(ix); TA
1925, s 68(6); LRA 1925, s 3(viii) (all amended by TLATA 1996, s 25(2), Sch 4); LCA 1972, s 17(1); LRA 2002,
s 132(1). See also Interpretation Act 1978, s 5, Sch 1; Starke v IRC [1995] 1 WLR 1439. Before TLATA 1996
there was a question as to whether land included an interest under a trust for sale: see below, p 466.

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iii the meaning of land

distinction between corporeal and

incorporeal hereditaments

Law is at one with the layman in agreeing that land includes the surface of the earth,
together with such physical things above and below it as buildings and trees, mines
and minerals,18 but it also gives the word a far wider meaning. The definition set out
above from the Law of Property Act 1925 includes both corporeal hereditaments
and incorporeal hereditaments within the meaning of land. These terms call for
explanation. The word hereditament signifies a right that is heritable, that is capable
of passing by way of descent to heirs; and our legal ancestors came to the conclusion
that hereditaments may be either corporeal or incorporeal. As Blackstone said:
Hereditaments, then, to use the largest expression, are of two kinds, corporeal and
incorporeal. Corporeal consist of such as affect the senses; such as may be seen and handled
by the body; incorporeal are not the object of sensation, can neither be seen nor handled,
are creatures of the mind and exist only in contemplation. Corporeal hereditaments consist
of substantial and permanent objects.19

The subject-matter of ownership may therefore consist either of physical, tangible

(corporeal) things (corporeities) or of intangible (incorporeal) things (incorporeities).
There is nothing remarkable in this, for it is obvious that an incorporeity such as a
right of way over adjacent land may be held with a house or a piece of land. What is
remarkable,20 however, is a terminology that declares that an interest in a corporeal,
physical thing, is itself a corporeal interest, but that an interest in an incorporeal thing
is an incorporeal interest. However, no proprietary interest can be other than a mere
right of ownership, and no matter what the nature of its subject-matter may be, it
must always be incorporeal: All property, of whatever kind, is an incorporeal right
to the corporeal use and profit of some corporeal thing.21 It is difficult to answer the
following criticism of Austin:22
With us all rights and obligations are not incorporeal things; but certain rights are styled
incorporeal hereditaments, and are opposed by that name to hereditaments corporeal. That
is to say, rights of a certain species ... are absurdly opposed to the things (strictly so called)
which are the subjects or matter of rights of another species. The word hereditaments is
18 Below, p 159. As to waste products dumped on land, see Rogers (Inspector of Taxes) v Longsdon [1967]
Ch 93.
19 Blackstone, vol ii, p 17.
20 Co Litt 6a; Lloyd v Jones (1848) 6 CB 81, 90.
21 (1857) 1 Jurid Soc, p 542 (SM Leake).
22 Austin, Lectures on Jurisprudence (5th edn, 1885, ed Campbell), vol i, p 362; but see Sweets answer in
Challiss Law of Real Property (3rd edn, 1911), pp 4858. LPA 1925, s 1(2), pp 1234, below, perpetuates the
confusion in describing a right to, for example, an easement as an interest in land, notwithstanding that
in s 205(1)(ix) (p 6, above) it includes an easement in the defi nition of land: An easement is that familiar
creature of English land law: an estate or interest carved out of a larger estate or interest, but nevertheless
constituting a hereditament in its own right. It is a burden on the servient tenement, but also land vested
in the proprietor of the dominant tenement: Willies-Williams v National Trust for Places of Historic Interest
or Natural Beauty (1993) 65 P & CR 359, 361 (Hoff mann LJ).

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AN INTRODUCTION TO LAND LAW

evidently taken in two senses in the two phrases which stand to denote the species of
hereditaments. A corporeal hereditament is the thing itself which is the subject of the right;
an incorporeal hereditament is not the subject of the right, but the right itself.

The use of this unscientific terminology need not, however, disturb us. The two
things to bear in mind are: first, that whether an interest, such as a fee simple estate,
exists in a corporeity or an incorporeity, it is an interest in land; and secondly, that
the number of incorporeities recognised by English law is considerable. Blackstone
described no fewer than ten incorporeal hereditaments some of which are no longer
of practical importance.23 The most important now are easements,24 profits25 and
rentcharges.26

fixtures

There is one class of corporeal things, traditionally known as fixtures, which are
regarded as land and which are sufficiently important to merit discussion.

(1) Distinction Between Land and Chattels

The primary legal meaning of fi xtures is objects that are so affi xed to land or to a
building on land as to become in fact part of it.27 A house built into the land becomes
part of the land. A chattel may be attached to an existing building in such a way as to
lose the character of a chattel and become part of the building, and therefore also part
of the land. The maxim is: quicquid plantatur solo, solo cedit; whatever is affi xed to the
soil accedes to the soil.
The house attached to the land28 and the chattel attached to the building are both in
law fi xtures, but this does not reflect everyday terminology:29
In ordinary language one thinks of a fi xture as being something fi xed to a building. One
would not ordinarily think of the building itself as a fi xture.

and
The term fi xture is apt to be a source of misunderstanding owing to the existence of
the category of so called tenants fi xtures (a term used to cover both trade fi xtures and
23 Blackstone, vol ii, c iii. The list is: advowsons, tithes, commons, ways, offices, dignities, franchises,
corodies (a right to receive victuals for ones maintenance), annuities and rents. Whether the benefit of
a restrictive covenant can be described as an incorporeal hereditament is a very doubtful question: Earl
of Leicester v Wells-next-the-Sea UDC [1973] Ch 110, 119 (Plowman J). On franchises, see Sevenoaks DC
v Pattullo & Vinson Ltd [1984] Ch 211 (right of market); R (Corporation of London) v Secretary of State for
the Environment, Food and Rural Affairs [2006] UKHL 30, [2006] 1 WLR 1721 (Smithfield and Billingsgate
common law markets); Crown Estate Commissioners v Roberts [2008] EWHC 1302 (Ch), [2008] 2 P & CR 15
(rights to wreck and several fishery).
24 Below, pp 123, 634.
25 Below, p 701.
26 Below, p 124 and Ch 20.
27 Leake, Uses and Profits of Land (1888), p 103.
28 Billing v Pill [1954] 1 QB 70, 75.
29 Elitestone Ltd v Morris [1997] 1 WLR 687, 6901, M & B p 7; (1997) 147 NLJ 1031 (HW Wilkinson);
[1997] CLJ 498 (S Bridge); [1998] Conv 418 (H Conway).

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iii the meaning of land

ornamental fi xtures),30 which are fi xtures in the full sense of the word (and therefore part
of the realty) but which may nevertheless be removed by the tenant in the course of or at the
end of his tenancy. Such fi xtures are sometimes confused with chattels which have never
become fi xtures at all.

Because of these concerns, in Elitestone Ltd v Morris31 the House of Lords preferred a
tripartite classification into (a) chattels, (b) fi xtures and (c) objects that are part and
parcel of the land itself. Objects in categories (b) (which will include those chattels
that have become part of a building) and (c) (which will include buildings32) are in law
treated as being part of the land.
The question whether an object has been so affi xed to a building or to land as
to become part of it is sometimes difficult to answer. It is a question of law for the
judge,33 but the decision in one case is not conclusive in another, for everything turns
upon the circumstances and mainly, though not decisively, upon two particular
circumstances: the degree of annexation and the object of annexation.34 We shall take
these considerations separately.
(a) Degree of annexation
The general rule is that a chattel is not deemed to become part of the land unless it
is actually fastened to or connected with the land or building. Mere juxtaposition or
the laying of an article, however heavy, upon the land does not prima facie make it
a fi xture, or part and parcel of the land, even though it subsequently sinks into the
ground. If a superstructure can be removed without losing its identity, it will not in
general be regarded as part of the land. Examples are a Dutch barn, consisting of a
roof resting upon wooden uprights, the uprights being made to lie upon brick columns
let into the ground;35 or a white marble statue of a Greek athlete weighing half a ton
and standing on a plinth.36 The case is the same if the posts that support the roof of
a corrugated iron building are not embedded in the concrete floor, but are held in
position by iron strips fi xed into the floor. The concrete foundation, which of course
30

Below, pp 2389.
[1997] 1 WLR 687, 691, following Woodfall, Landlord and Tenant (looseleaf edn), vol 1, para 13.131;
followed in Chelsea Yacht and Boat Co Ltd v Pope [2000] 1 WLR 1941, 1944; Wessex Reserve Forces and
Cadets Association v White [2005] EWHC 983, [2005] 3 EGLR 127 at [21].
32 Elitestone Ltd v Morris, above (wooden bungalow resting only by its own weight on concrete pillars set
into the ground became part and parcel of the land).
33 Reynolds v Ashby & Son [1904] AC 466.
34 Holland v Hodgson (1872) LR 7 CP 328, 334 (Blackburn J). See Melluish v BMI (No 3) Ltd [1996] AC
545 (contractual term that object shall remain a chattel not decisive: The concept of a fi xture which remains
personal or removable property is a contradiction in terms and an impossibility in law; [1995] Ch 90, 115
(Dillon LJ in CA)). For a useful summary of the principles, see Wessex Reserve Forces and Cadets Association
v White [2005] EWHC 983, [2005] 3 EGLR 127 at [21][23] (Michael Harvey QC).
35 Elwes v Maw (1802) 3 East 38, 55; Wiltshear v Cottrell (1853) 1 E & B 674; Deen v Andrews (1986) 52 P & CR
17; Hynes v Vaughan (1985) 50 P & CR 444 (chrysanthemum growing frame and sprinkler system held not to
be fi xtures); Kennedy v Secretary of State for Wales [1996] EGCS 17 (three massive ormulu bronze chandeliers
and carillon turret clock at Neo-Gothic Grade II listed Leighton Hall, Welshpool, held to be fi xtures).
36 Berkley v Poulett [1977] 1 EGLR 86; cf Hamp v Bygrave [1983] 1 EGLR 174 (stone and lead garden
ornaments held to be fi xtures): Berkley v Poulett was not cited; [1983] NZLJ 256 (HW Wilkinson).
31

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AN INTRODUCTION TO LAND LAW

becomes part of the land, is regarded as a separate unit from the superstructure.37
Again, a printing machine that stands by its own weight upon the floor is not a fi xture,
even though the driving apparatus is attached to the building at certain points.38 On
the other hand, a chattel that is attached to land, however slightly, is prima facie to be
deemed a fi xture. Thus, a conservatory attached to a house is a fi xture,39 as also are
doors, windows, chimney-pieces, ovens and other similar things.
Nevertheless the extent of annexation is not a decisive test. As Blackburn J said:40
Perhaps the true rule is, that articles not otherwise attached to the land than by their own
weight are not to be considered as part of the land, unless the circumstances are such as to
shew that they were intended to be part of the land, the onus of showing that they were so
intended lying on those who assert that they have ceased to be chattels; and that, on the
contrary, an article which is affi xed to the land even slightly is to be considered as part of the
land, unless the circumstances are such as to shew that it was intended all along to continue
a chattel, the onus lying on those who contend that it is a chattel.

(b) Object of annexation

The test here is to ascertain whether the chattel has been fi xed for its more convenient
use as a chattel, or for the more convenient use of the land or building.41 Blackburn J
gave the following example:
Blocks of stone placed one on the top of another without any mortar or cement for the
purpose of forming a dry stone wall would become part of the land, though the same
stones, if deposited in a builders yard and for convenience sake stacked on the top of each
other in the form of a wall, would remain chattels.42

Again, a comparatively durable method of affixation will not render a chattel a fixture,
if the method of annexation is necessary to its proper enjoyment as a chattel. Thus in the
case of Leigh v Taylor43 a tenant for life, the owner of some valuable tapestry, laid strips
of wood over the drawing-room paper and fixed them to the walls with two-inch nails.
Canvas was stretched over these strips, and the tapestry was fastened by tacks to the strips.
It was held that the tapestry had not become a fixture. Vaughan Williams LJ said:44
In my judgment it is obvious that everything which was done here can be accounted for as
being absolutely necessary for the enjoyment of the tapestry, and when one arrives at that
conclusion there is an end of the case.
37 Webb v Bevis Ltd [1940] 1 All ER 247; cf Jordan v May [1947] KB 427 (electric lighting engine and
dynamo bolted to a concrete bed. These were held to be fi xtures, but not the batteries). The degree of affi xation
is not necessarily the same in every type of case; see, eg, London County Council v Wilkins [1955] 2 QB 653;
affd [1957] AC 362 (wooden sectional hut).
38 Hulme v Brigham [1943] KB 152.
39 Buckland v Butterfield (1820) 2 Brod & Bing 54.
40 Holland v Hodgson (1872) LR 7 CP 328, 335; Bradshaw v Davey [1952] 1 All ER 350 (yacht mooring in
the Hamble River held intended to be a chattel); Chelsea Yacht and Boat Co Ltd v Pope [2000] 1 WLR 1941
(houseboat moored by ropes and connected to services which could be untied and disconnected without
undue effort not annexed to the land; leave to appeal to HL refused: [2000] 1 WLR 2469).
41 Wake v Hall (1883) 8 App Cas 195, 204.
42 Holland v Hodgson, above, at 335.
43 [1902] AC 157.
44 In CA under the name Re De Falbe [1901] 1 Ch 523, 537.

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iii the meaning of land

The principle of this decision was adopted where a lessee had erected some oak and
pine panelling and a chimney-piece;45 and where a vendor had screwed pictures while
still in their frames into the recesses in the panelling of a dining-room.46
On the other hand, chattels may be annexed to or placed on land in circumstances
that show an obvious intention to benefit the use of the land, and if this is so they
become fi xtures. Examples are seats secured to the floor of a cinema hall,47 and such
objects as statues, stone seats and ornamental vases, held in position merely by their
own weight, which are part of the architectural design of a house and its grounds.48
Similarly, a wooden bungalow resting on its own weight on concrete pillars has been
held to be part of the land, whereas a greenhouse resting on its own weight on concrete
dollies has been held not to be a fi xture.49 As Lord Lloyd of Berwick said:50
It is obvious that a greenhouse which can be moved from site to site is a long way
removed from a two bedroom bungalow which cannot be removed at all without being
demolished.

In Botham v TSB Bank plc,51 the Court of Appeal examined household appliances
and held that baths, lavatories and bathroom fittings, as well as fitted kitchen units and
sinks will usually be fi xtures; but not so carpets, curtains, most light fittings and gas
fires whose only connection with the building is by a pipe to the gas supply; and white
goods, such as refrigerators, dishwashers and washing machines, where the degree of
annexation is slight and no more than needed to allow normal use. Emphasising that
the purpose of annexation is the key issue, Roch LJ said:
If the item viewed objectively, is intended to be permanent and to afford a lasting
improvement to the building, the thing will have become a fi xture. If the attachment is
temporary and is no more than is necessary for the item to be used and enjoyed, then it will
remain a chattel.

(2) Right to Remove Fixtures

Even if a chattel is affi xed to the land so as to become part of the land, the person
who affi xed it or his successors in title may have a right to remove it. At common
law, a tenant for years and a tenant for life is entitled to remove trade, ornamental
or domestic fi xtures.52 Agricultural tenants also have the right by statute to remove
45

46 Berkley v Poulett [1977] 1 EGLR 86.

Spyer v Phillipson [1931] 2 Ch 183.
Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74. Cf Lyon & Co v London City and Midland
Bank [1903] 2 KB 135.
48 DEyncourt v Gregory (1866) LR 3 Eq 382; Monti v Barnes [1901] 1KB 205; cf Berkley v Poulett, n 46,
above, where the statue was not an integral part of the design.
49 HE Dibble Ltd v Moore [1970] 2 QB 181; Hynes v Vaughan (1985) 50 P & CR 444, n 35, above.
50 Elitestone Ltd v Morris [1997] 1 WLR 687, 693.
51 (1996) 73 P & CR D1; Chelsea Yacht and Boat Co Ltd v Pope [2000] 1 WLR 1941 (mooring of houseboat
was not with the object of providing a permanent home, but to prevent it from being carried by the tide or
the weather and to provide services to it).
52 For the meaning of trade fi xtures, ornamental fi xtures and domestic fi xtures, see below, pp 23839.
47

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AN INTRODUCTION TO LAND LAW

agricultural fi xtures.53 As between devisee and personal representative,54 vendor and

purchaser55 and mortgagor and mortgagee56 there is no general right of removal, and
the question of entitlement is dependent upon the question of annexation to the land.

iv Development of Modern Land Law

Modern English57 land law is based on the reforms enacted in a series of statutes that
were passed in 1925 and came into force on 1 January 1926: the Settled Land Act 1925,
the Trustee Act 1925, the Law of Property Act 1925, the Land Registration Act 1925,
the Land Charges Act 1925 and the Administration of Estates Act 1925.
Since 1925 there has been continuous legislative activity, especially in the fields
of landlord and tenant and the public control of the use of land; and the system of
registration of title to land has in large part superseded earlier methods of conveyancing. But the principles of modern land law are contained in the 1925 legislation. An
understanding of those principles is essential to the understanding of the modern law;
at the same time, some understanding of the land law as it developed from medieval
times to 1926 is essential to the understanding of the 1925 legislation.58

Feudal Basis of Land Law.

Tenures and Estates

The land law is a body of law that, while based on a feudal system imposed by the
Norman Conquest, has been adapted to a succession of political and social upheavals,
culminating in the welfare state of the twentieth century. It is its feudal basis that
explains why, even today, land is not the subject of absolute ownership by private
citizens but is formally held of the Crownthe doctrine of tenure. Before 1926 there
were different forms of tenure59 by which the person who appeared to be the owner
of land in fact held it of a feudal superior lord, or directly of the Crown, and who was
liable to lose the land if, for example, he failed to fulfi l the conditions attached to his
tenure. As we shall see, the 1925 reforms simplified and modernised the doctrine of
tenure but did not abolish it. It is still only the Crown that can technically hold land by
53

Agricultural Holdings Act 1986, s 10; Agricultural Tenancies Act 1995, s 8; below, pp 2401.
Re Whaley [1908] 1 Ch 615; Re Lord Chesterfields Settled Estates [1911] 1 Ch 237 (ornamental wood
carvings by Grinling Gibbons).
55 Gibson v Hammersmith & City Rly Co (1863) 32 LJ Ch 337; Phillips v Lamdin [1949] 2 KB 33; below,
p 982.
56 Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74; Longbottom v Berry (1869) LR 5 QB 123; cf
Gough v Wood & Co [1894] 1 QB 713 (third party may have right of removal as against mortgagee); below,
p 866.
57 Th is includes Wales, but not Scotland or Northern Ireland. For the inter-relation between English and
Irish land law, see Wylie, Irish Land Law (4th edn, 2010), ch 1.
58 For the history, see below, Chs 24.
59 Below, pp 3647.
54

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iv Development of Modern Land Law

way of absolute ownership,60 although this has little consequence in practice and we
commonly refer to an individual as the owner of the land.
What the owner owns, however, is not the land itself. It is an estate in the land.61
The estate is the right to seisin,62 or possession, of the land for a period of time,
either of uncertain duration (a freehold estate) or of a duration that is fi xed or at
least ascertainable from the time of its creation (a leasehold estate). Before 1926 the
common law came to recognise a range of different freehold estates, not only the estate
that would continue as long as the holder for the time being had any heirs to whom
it could be passed (the fee simple63which is the nearest English approximation to
absolute ownership) but also one that was limited in the range of heirs to which it
could be passed (the fee tail) or was limited to last only for the duration of the life of
the grantee (the life estate) or of a third party (the estate pur autre vie). Estates could
be granted under which the right to take possession was in the future, subject to some
other estate owners right to (present) possession. And so multiple estates could exist
in the same land; the fee simple could be held by A, an immediate life estate in the land
by B and after Bs death a life estate by C; and either B or C might grant out of their own
estate a leasehold estate to D for a defined number of years.

The Significance of Possession

within the Land Law

The estate in the land is based on the right to seisin, or possession, of the land. We shall
see that, since the enactment of the Law of Property Act 1925, the estates that can exist
at common law are limited to the fee simple absolute in possession, and the term of
years absolute.64 But that Act did not change the nature of land ownership or of the
doctrine of the estate. Thus from 1926 in English law the ownership of land was still
based on the doctrine of the estate, which is itself inextricably linked to the notion of
the right to possession of the land.
This reliance on possession as the basis of land ownership resulted in the common law
taking the view that the acquisition of possession of the land was itself the acquisition
of a title to the land. Possession was a root of title. From the first day of his possession,
even if he took it by dispossessing another, the possessor had full beneficial rights over
the land, holding a fee simple estatealthough this was only a relative title, since if
anyone could show a better right to possession, he could recover the land.65
Two separate issues arise from this view, taken by the common law, of the significance
of possession.66 First, if possession is a root of title, how, in practice, will a vendor of
60

61 Below, pp 4857.
Known as demesne land: see, eg, LRA 2002, ss 7981.
For the technical usage of seisin (for freeholds) and possession (for leaseholds), see below, p 48.
63 For the meaning of fee simple see below, p 151.
64 LPA 1925, s. 1(1); below, p 123.
65 Below, pp 4851.
66 Possession, or the right to possession, of land also has other significance; eg in the law of tort it gives
standing to sue in trespass, or in nuisance: Powell v McFarlane (1977) 38 P & CR 452 at 469 (Slade J); Malory
62

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AN INTRODUCTION TO LAND LAW

land establish his title to sell? Where the title to the land has not yet been registered,
this remains a question even today,67 although the modern system of registration of
title, guaranteed by the State, has now resolved these difficulties.68 Secondly, what is
the significance of the loss of possession: in what circumstances does a squatter not
only oust the owner from possession of his land, but also deprive him of the right any
longer to claim that he is owner? This is discussed in Chapter 29, where we shall see
again that, under the Land Registration Act 2002, in relation to registered land the loss
of possession does not of itself give rise to a loss of title, and therefore the significance
of possession, in relation to registered land, is now fundamentally changed.69

Common Law and Equity

The development of land law is bound up with the development of equity in English
law, and the modern land law cannot be understood without an appreciation of the
historical distinction between the common law and equity, and the significance of
equity today.
An outline of the development of the equity jurisdiction by the Chancellor, and in
particular the recognition of the trust, is set out in Chapter 3.70 Although the separate
jurisdictions of the old courts (and courts of appeal) of common law and equity were
united into a single court structure71 by the Judicature Act 1873, the substantive rules of
common law and equity remained distinct but were administered concurrently by the
new High Court and Court of Appeal.72 The old courts of equity had come to recognise
estates and interests in land separate from the estates and interests recognised by the
common law courts. In particular, equity developed the trust where, for example, land
was conveyed to a person (the trustee) to hold on trust for another (the beneficiary)
and the beneficiary was recognised as having in equity an estate in the land although
at common law the estate was held by the trustee. The legal owner of the land was
required by equity to give effect to the trust, and the beneficiary under the trust was
regarded, in equity, as the real (beneficial) owner. Similarly, the courts of equity
recognised that a person who did not have an interest in anothers land at common law
because, for example, the formalities required by the common law for the creation of
the interest had not been complied with, had in certain circumstances an equivalent
right in equity that the courts of equity would enforce. A person may therefore be the
beneficiary of an equitable fee simple, or an equitable lease, or an equitable easement,

Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] EWCA Civ 151, [2002] Ch 216; Hunter v Canary Wharf
Ltd [1997] AC 655.
67

68 Below, pp 212; 107980.

Below, pp 212; 104349.
70 Below, pp 718.
Below, pp 11604.
71 Known as the Supreme Court of Judicature: s 3, made up of the High Court and the Court of Appeal:
s 4. Supreme Court was changed to the Senior Courts when the appellate jurisdiction of the House of
Lords was transferred to the new Supreme Court in October 2009: Constitutional Reform Act 2005, s 26.
72 Supreme Court of Judicature Act 1873, s 24. See now Senior Courts Act (formerly Supreme Court Act)
1981, s 49.
69

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iv Development of Modern Land Law

which the courts of equity would enforce; and after the fusion of law and equity by
the Judicature Act 1873 such equitable estates and interests were recognised and
enforced by all courts. We shall see that even today certain rights in land are referred
to as equitable estates and interests, many of them mirroring equivalent estates and
interests at common law,73 but some of them developed by equity as independent
interests where there is no corresponding common law property right.74
An equitable estate was not, however, as strong as a legal estate; and an equitable
interest was not as strong as a legal interest. A legal estate and interest operated as a
property right in the full senseas a right in rem, which would bind any person who
came to the land over which the estate or interest had been created.75 An equitable
estate or interest, however, was not so fully effective. It had the main characteristic
of a property right in that it was capable of enduring through successive changes of
ownership of the land, so as to both benefit and bind parties who were not involved
in its original creation.76 But it was defeated if a legal estate in the burdened land
passed into the hands of a bona fide purchaser for value who had no notice of the prior
equitable estate or interest. This bona fide purchaser (as he wasand iscommonly
known) took priority over the equitable owner.
Th is account of the distinction between estates and interests recognised at
common law and in equity is not simply history. Rather, it lays the foundation for the
operation of the modern land law. As we shall see, the introduction of provisions for
the registration of interests in land where the title to land is itself still unregistered
(unregistered land 77) or for the registration of the legal title to the land (registered
land 78) presuppose the distinction between legal and equitable interests in land
and the basic difference that legal estates and interests are generally stronger than
equitable estates and interests. Registration has now been largely adopted as a
substitute for the former doctrine of notice. But the core distinction between legal
and equitable estates and interests remains, and even the most recent reworking of
registered land in the Land Registration Act 2002 follows a scheme that is based on
the old distinctions.79

Legislative Reforms of Nineteenth Century

and the Impetus to the Reforms

Legislative reform of land law has a long history. Reform with a view to simplification
of the land law began in earnest after the report of the Real Property Commissioners
in 1829. Although the Commissioners began their report by saying that this
department of English law appears to come almost as near to perfection as can be
expected in any human institutions,80 they nevertheless went on to express their
73

See below, pp 21520 (equitable lease), 6501 (equitable easement), 80713 (equitable mortgage).
See below, pp 73241 (burden of a restrictive covenant), 90919 (equity by estoppel).
75 Above, p 5; below, p 80.
76 Above, p 4.
77 Below, pp 21; 121; Ch 27.
78 Below, pp 21; 131; Ch 28.
79 Below, pp 2122; 13940; 1436.
80 Real Property Commissioners First Report, p 6.
74

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AN INTRODUCTION TO LAND LAW

opinion that the modes by which interests in land were created, transferred and
secured had become unnecessarily defective and that they demanded substantial
alteration. The result of this view was that on their recommendation a number of
statutes were passed between 1832 and 183781 which swept away many impediments
to the smooth operation of the law.
Between 1837 and 1922 the legislature became more and more active in the
sphere of real property law, but most of the enactments were directed towards the
simplification of conveyancing and the extension of the landowners powers of
enjoyment. No comprehensive effort was made to smooth the path by abolishing
the substantive defects that had settled on the main body of the law like barnacles
on the hull of a ship. Then came the war of 191418, and with it a general desire
to set the social life of the nation in order. One of the results of this desire was to
give an impetus to land legislation, and the main idea that lay at the back of the
legislation was a desire to render the sale of land as rapid and simple a matter as
is the sale of goods or of stocks and shares.82 The layman knows that if he desires
to transfer to another the ownership of a chattel, such as a car or a picture, the
normal requirement is the making of a contract that names the parties, records their
intention, describes the article to be sold and states the price to be paid. The contract
for the sale of a chattel need not even be in writing but may be oral; and the moment
that the contract is concluded, the property in the article, in the absence of a contrary
intention, passes to the buyer.83 At fi rst sight it is difficult to appreciate why the same
simple expedient cannot be adopted in the case of land, and not unnaturally the
layman grows impatient of the long and expensive investigation required for the
conveyance of a piece of land.
But the difference is inevitable, and one reason84 is that in the great majority of
cases the possessor of personal goods is their absolute owner, and therefore able to
pass a title that will confer upon their deliveree an equally full and unincumbered
ownership. If X is in possession of a piano, it is probable that he is its owner, and in
most cases a buyer is safe in paying its value and taking delivery of possession. A seller
cannot generally transfer a title greater than his ownnemo dat quod non habetand
if it should happen that X, instead of being the owner, is a thief or is merely holding
the piano under a hire purchase agreement, then a buyer from him will not acquire
ownership. But the fact remains that despite risks of this nature a buyer is generally
81

Chiefly the Prescription Act 1832, Fines and Recoveries Act 1833, Real Property Limitation Act 1833,
Dower Act 1833, Inheritance Act 1833 and Wills Act 1837.
82 See Birkenhead, Points of View (1922), vol ii, p 34, discussing LPA 1922. As Lord Chancellor, he was
responsible for the passage of this Act and, subsequently, the whole of the 1925 legislation through the House
of Lords.
83 Sale of Goods Act 1979, ss 17, 18.
84 Another reason is that the law desires to protect the owner of land, which is often his most significant
asset, against informal dealings in the land that may not be sufficiently carefully deliberated. For the aims of
formality, and the formalities required for both contracts relating to, and dispositions of, interests in land,
see below, pp 95960; Ch 25.

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iv Development of Modern Land Law

justified in assuming that the possessor of goods is also the owner, and as a rule there
is no need to go to trouble and expense in order to ascertain whether some person
other than the possessor has any interest in them. It is a legitimate risk to take. But for
a purchaser of land to be content with the word of the vendor and with the appearance
of ownership that flows from his possession would be foolish.
Land and goods are and must ever be on a different plane. Land is fi xed, permanent
and vital to the needs of society, and a subject-matter in which rights may be granted
to persons other than the ostensible owner. X is in possession of land and is obviously
exercising all the powers of enjoyment and management that amount to the popular
idea of ownership, but none the less it is by no means certain that he is entitled to
dispose of the interest that he may have agreed to sell. He may be in possession
under a lease for any period from one week to 999 years or more, or he may have a
life interest under a family settlement; and even if he holds the fee simple it is likely
that he or his predecessors have granted to third parties rights, such as mortgages,
restrictive covenants and rights of way, which continue to be enforceable against the
land regardless of any transfer to which it may have been subjected. So long as third
parties can in this way have enforceable rights against land that outwardly appears to
belong absolutely to the possessor, it is difficult, in the absence of a complete register
of title, to devise a system under which conveyances of land can be conducted with the
facility of sales of goods; and even then it will always be necessary for a purchaser to
make careful searches and inquiries in order to see that there are no third-party rights
that will bind the land after it has been transferred to him.
We may start, then, with the assumption that no effort of legislative genius can,
from the point of view of simplicity and rapidity, put conveyances of land on an equal
footing with sales of goods. But when the question of reforming the law came before
Parliament in 1922, the result of nearly a thousand years of development from a feudal
origin was that the law of real property contained so many antiquated rules and useless
technicalities that additional and unnecessary impediments had arisen to hinder the
transfer of land. The real property law as it existed in 1922 might justly be described
as an archaic feudalistic system that, though originally evolved to satisfy the needs of
a society based and centred on the land, had by considerable ingenuity been twisted
and distorted into a shape more or less suitable to a commercial society dominated
by money. The movement of progressive societies has been from land to money, or
rather to trade, and a legal system that acquired its main features at a time when land
constituted the major part of the countrys wealth can hardly be described as suitable
to an industrial community. To borrow the words of Bagehot directed to a different
subject, the 1922 real property law might be likened to an old man who still wears
with attached fondness clothes in the fashion of his youth; what you see of him is the
same; what you do not see is wholly altered.
To take any structure, whether it be a system of law, a constitution or a house, and
for a period of some thousand years to patch it here and there in order to adapt it to
new conditions, cannot fail to lead to complications of a bewildering character.

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AN INTRODUCTION TO LAND LAW

E Law of Property Act .
Assimilation of Real and Personal Property

Confirmed in these views, the legislature began in 1922 to reform the law on a far more
ambitious scale than had been attempted in the earlier legislative changes. Although
the main purpose was to simplify conveyancing, this was pursued not merely by a
simplification of the machinery of land transfer, but also by a free use of the pruning
knife. In the official view, reforms were needed as a prelude to the simplification and
extension of the system of registration of title.85
The first Act to be passed was the Law of Property Act 1922, which was described
in its preamble as:
An Act to assimilate and amend the law of Real and Personal Estate, to abolish copyhold
and other special tenures, to amend the law relating to commonable lands and of intestacy,
and to amend the Wills Act, 1837, the Settled Land Acts, 1882 to 1890, the Conveyancing
Acts, 1881 to 1911, the Trustee Act, 1893 and the Land Transfer Acts, 1875 and 1897.

The all-important fact that emerges from this descriptive title is that one main object
was to assimilate . . . the law of real and personal estate.
We shall see as we proceed that a comparison of the law relating to real and personal
property respectively is, from the point of view of convenience and reason, very much
to the advantage of the latter. Part I of the Act put the two forms of property as nearly
as possible upon the same footing, a result that was obtained partly by abolishing
the chief differences that formerly existed between the two, and partly by eliminating
many of the technical anachronisms that had grown up in the land laws. In addition,
the law of personal property, which thus became the dominating system, was itself
amended in several particulars.

Legislation of .
Consolidating Acts

The date at which the Act of 1922 was appointed to come into operation, however,
was postponed, for the changes it made were sufficiently drastic to necessitate the
redrafting and consolidation of the real property statute law from the year 1285. The
Law of Property (Amendment) Act 1924 was therefore passed to facilitate the task of

85 Wolstenholme and Cherry, Conveyancing Statutes (12th edn, 1932), vol i, p clxvi. See the speech of
Sir Leslie Scott, who was Solicitor-General, introducing the Bill into the House of Commons (1922) 154
HC Debates (5th Series) 90; reproduced with annotations by B B Benas in Scott, The New Law of Property
Explained (1925); and the valuable six Lectures by Sir Benjamin Cherry on The New Property Acts (1926), and
especially his series of Questions and Answers at pp 104 ff. See also Anderson, Lawyers and the Making of
English Land Law 18321940 (1992).

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iv Development of Modern Land Law

consolidation, and then all but the transitional provisions of this Act and of the Act of
1922 were absorbed into the six statutes, passed in 1925, which are set out above.86
These statutes are all consolidating Acts. Where the Acts of 1922 and 1924 make
no change in the old law, there is a presumption that the Acts of 1925 did not
change it. But where the Acts of 1922 and 1924 do make some change, there is only
a presumption that the Acts of 1925 did not change the changes made by those two
Acts.87

Further Developments in and

The reform of the land law by the legislator did not stop in 1925. Throughout the
twentieth century, and now already in the twenty-first century, there has been further
legislative activity in many areas. Most has not changed the fundamental principles of
the modern law set out in the 1925 legislation, but two particular developments should
be noted that have changed the significance of those statutes.
In the first, the Trusts of Land and Appointment of Trustees Act 1996, legislation
intervened to make significant changes to the principles by which beneficial interests
can be held in land. We shall see the detail in Chapter 13, The Trust of Land. But for
the present purposes we should notice that the effect of the 1996 Act was to prevent the
future creation of strict settlementswhich had been part of the historical structure
of family land ownership in English law. The significance of the Settled Land Act 1925
was thereby considerably reduced.
Most recently, the Land Registration Act 1925 was repealed and replaced by the
Land Registration Act 2002. This was not just a cosmetic change, nor simply designed
to bring the former statute up to date.88 It constituted a revision of the principles of
registered conveyancing, designed to lead within the following decade to a complete
register of title to every parcel of land in England and Wales, and to the introduction
of electronic conveyancing.

86 P 12. For a detailed commentary on the 1925 legislation, see the six volumes of Wolstenholme and
Cherry, Conveyancing Statutes (13th edn, ed Farrand, 1972). Previous editions are valuable, as these contain
the commentaries of Wolstenholme (who was responsible for draft ing CA 1881 and SLA 1882) and Cherry
(the property statutes of 1922 and 1925). On the 1922 Act, see Underhill, A Concise Explanation of Lord
Birkenheads Act (the Law of Property Act 1922) in Plain Language (1922).
87 Beswick v Beswick [1968] AC 58; cf Maunsell v Olins [1975] AC 373, 3923; Farrell v Alexander [1977]
AC 59, 72, 82, 96; Johnson v Moreton [1980] AC 37, 56. See also Grey v IRC [1960] AC 1; Lloyds Bank Ltd v
Marcan [1973] 1 WLR 339, 344; affd [1973] 1 WLR 1387; Re Dodwell & Co Ltds Trust [1979] Ch 301, 308;
R v Heron [1982] 1 WLR 451, 459; Wolstenholme and Cherry, vol 1, p 31; (1959) 75 LQR 307 (REM).
88 The Land Charges Act 1925 was repealed and replaced by the Land Charges Act 1972, although without
fundamental changes of substance. The other statutes of 1925, listed on p 12, remain in force, although all
have been amended from time to time.

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AN INTRODUCTION TO LAND LAW

v outline of rights in land and

their creation and transfer
Land law is the area of the law that defines those rights that are recognised as real
property rightsestates and interests in landand the mechanisms by which they
are created and transferred. We shall see the detail later,89 including something of how
the law has developed,90 an historical context without which the current law cannot
be fully understood. At the outset, however, in order to set a framework within which
the account given in the following chapters can be placed, it will be useful to give an
outline of the estates and interests that are recognised in the modern law, the methods
by which they may be created and transferred, and the impact on third parties of the
transfer of land. The analysis of a persons claim to exercise a right against anothers
land generally involves these questions: what is the nature of the right that is claimed?
If it is a property right, has it been created according to the requirements set for that
kind of right? If so, has the claimant the benefit of the right and is the defendant subject
to its burden?that is, if the parties are not the original parties to the creation of the
right in question,91 has the benefit of the right been transferred to the claimant, and
is the defendant bound by it (for example by each being the successor to the land to
which the benefit or burden was attached at its creation)?

Estates and Interests in Land

We have already noted that English law recognises both legal and equitable estates and
interests in land. Since 1926 there are only two legal estates:92 the fee simple absolute
in possession (the freehold estate that approximates to ownership of the land), and the
term of years absolute (the leasehold estate granted for a period that is defined from the
outset); and a finite list of legal interests or charges in or over land,93 the most important
of which are easements and mortgages granted over legal estates in land. All other estates,
interests and charges in or over land can take effect only as equitable interests:94 this
will include such things as the benefit of a trust of land; an equitable lease, an equitable
easement and an equitable mortgage or charge; and a restrictive covenant or an equity
by estoppel.

89 See pp 11943, below, for a short account of conveyancing in the modern law. Part III explains in
detail the different estates and interests in land, and Part IV the detailed rules for the creation, transfer and
extinction of those estates and interests.
90 Below, Chs 25.
91 Where the claimant and defendant are the original parties, the claim will often fall simply within the
law of contract, and even a third party may be able to claim a direct right in contract under the Contracts
(Rights of Th ird Parties ) Act 1999; below, p 743.
92 LPA 1925, s 1(1); below, p 123.
93 Ibid, s 1(2).
94 Ibid, s 1(3).

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v outline of rights in land and their creation and transfer

B

Creation of Estates and Interests

We shall see that there are special rules for the creation of certain estates and interests
in land. A legal estate and interest can generally be created only by deed:95 failure to
use this formality where it is required will render the transaction ineffective to create
the legal estate or interest although in some circumstances the transaction may be
effective to create the equivalent estate or interest in equity.96 Furthermore, where
the title to the land in or over which the estate or interest is to be created has been
registered under the Land Registration Act 2002, the disposition by which the estate
or interest is created must often be completed by registration, failing which it takes
effect only as an equitable interest.97

Transfer of Estates and Interests

Since one of the characteristics of a property interest is that not only is its benefit
transmissible but also it may burden a successor of the property to which it is attached,
it is important to understand, for each of the property interests recognised by the land
law, the circumstances in which its benefit and its burden may be transferred. The
detail will be discussed later in relation to each separate interest,98 but it should here be
noted that a distinction is drawn according to whether the title to the land over which
the interest subsists is registered or unregistered.
In unregistered land the title to the land itself is conveyed by deed; and before 1926 the
question whether a disponee of the land was burdened by interests that had attached to
the land before the disposition was determined by whether the interest was legal (in which
case it was automatically binding) or equitable (in which case it bound the disponee
unless he was a bona fide purchaser of a legal estate in the land without notice of the
equitable interest).99 Since the introduction of the register of land charges by the Land
Charges Act 1925,100 however, many third-party interests in unregistered land can be
entered on the land charges register and any such interest that has not been so registered
will not bind a purchaser for value of a legal estate in the land. In effect, registration in
such cases takes the place of notice of the interest, as against a purchaser of the legal estate.
Where, however, the title to the land is registered under the Land Registration Act
2002,101 the legal title itself is not transferred by the execution of a deed alone but the
deed of transfer must in addition be completed by registration. All interests affecting
registered land automatically bind a transferee of the land who is not a purchaser of
the legal title.102 But a purchaser of the legal title takes free of third-party rights in
registered land that are not protected:103 an interest can generally be protected by its
95
96
97
98
100
101
102

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Ibid, s 52; below, p 1001.

For formality requirements and the consequences of failure to comply with them, see Ch 25.
LRA 2002, s 27; below, pp 10089.
99 Below, pp 8091.
Below, Part III.
Now LCA 1972; below, pp 1278, 105366.
Formerly LRA 1925. For differences in the 1925 and 2002 Acts, see below, pp 13941.
103 Ibid, s 29(1).
LRA 2002, s 28; eg where the legal title is transferred by way of gift.

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AN INTRODUCTION TO LAND LAW

beneficiary entering a notice on the register of title of the burdened land, but some
interests are also binding on a purchaser even if they are not entered on the register
(overriding interests).104

vi land law and human rights

The United Kingdom has been bound by the European Convention on Human Rights106
since 1953, but before the enactment of the Human Rights Act 1998 the only recourse
was against the State, in an action brought before the European Court of Human
Rights at Strasbourg.107 Under the Human Rights Act, however, the domestic courts
now have jurisdiction in relation to alleged breaches of the Convention, although the
Act does not expressly create rights enforceable directly between private individuals.108
However, it is unlawful for a public authority to act in a way that is incompatible with
a Convention right,109 and this gives private individuals directly enforceable rights
against, for example, public authority landlords. Indeed, since public authority
includes the court, it can be argued that the court must take into account Convention
104 LRA 2002, Sch 3 (eg certain short legal leases, certain legal easements and interests belonging to a
person in actual occupation of the land): below, pp 13740, 110013.
105 See generally Rook, Property Law and Human Rights (2001); Allen, Property and the Human Rights
Act 1998 (2005); Tee, ch 7 (Gray); (2007) 123 LQR 618 (J Howell).
106 Convention for the Protection of Human Rights and Fundamental Freedoms, agreed at Rome by the
Council of Europe (of which the United Kingdom was a founding member) on 4 November 1950, ratified by
the United Kingdom on 8 March 1951 and in force from 3 September 1953. The protection of property was
excluded from the Convention rights and negotiated separately in the First Protocol which was added to the
Convention by agreement of the Council on 20 March 1952 and became effective on 18 May 1954: Allen,
Property and the Human Rights Act 1998 (2005), ch 1.
107 Such recourse is still possible, and a litigant who cannot obtain an appropriate remedy in
the domestic courts may seek to obtain an order from the European Court of Human Rights for
compensation from the UK Government for its failure to protect his human rights in accordance
with the Convention. See, eg, the litigation in JA Pye (Oxford) Ltd v United Kingdom [2005] 3 EGLR
1 (combined operation of Limitation Act 1980 and LRA 1925 incompatible with Article 1 of the First
Protocol), reversed by the Grand Chamber [2008] 1 EGLR 111; p 1165, below; Kay v United Kingdom
[2010] ECHR 37341/06, [2011] L & TR 1 (violation of procedural aspect (only) of Art 8 at the time of
the decision in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465, below, p 350); [2010] Conv 498
(S Nield). On the scope of the duty of English courts to follow Strasbourg jurisprudence, see HRA
1998, s 2; Ofulue v Bossert [2008] EWCA Civ 7, [2009] Ch 1 at [32] (Court of Appeal), [2009] UKHL
16, [2009] 1 AC 990 at [72]-[73] (House of Lords); Manchester City Council v Pinnock [2010] UKSC 45,
[2010] 3 WLR 1441 at [48] (Supreme Court).
108 So-called horizontal effect (contrasted with the vertical effect of the enforceability of rights as
against the State); see n 110, below.
109 HRA 1998, s 6(1). For the problem of the defi nition of public authority, see Aston Cantlow and
Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546 (PCC not a
public authority and therefore had no obligation to act in accordance with Convention rights in enforcing
defendants liability to pay for chancel repairs); [2004] PL 329 (D Oliver); R (Weaver) v London and Quadrant
Housing Trust [2009] EWCA Civ 587, [2010] 1 WLR 363 (registered social landlord was hybrid public
authority: question was whether termination of tenancy was a private act within HRA 1998, s 6(5)).

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vi land law and human rights

rights even in disputes between private parties.110 However, courts cannot disapply
legislation that they find to be incompatible with the Convention,111 nor require the
legislature to enact amending legislation to comply with the Convention. They can,
however, make a declaration that a provision of primary or subordinate legislation
is incompatible with a Convention right;112 and they must interpret primary and
subordinate legislation in a way that is compliant with the Convention rights so far as
it is possible to do so.113
In recent years the Human Rights Act 1998 has been invoked in a significant number
of cases involving real property rights. The Convention rights that have generally been
invoked are those contained in Articles 8 and 14 of the Convention, which read as
follows:
Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
Article 14 Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national minority, property,
birth or other status.

together with Article 1 of the First Protocol, which reads:

Article 1 Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general principles of international law. The
preceding provisions shall not, however, in any way impair the right of a State to enforce
such laws as it deems necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or penalties.

In applying the Human Rights Act, the courts have interpreted the succession
provisions of the Rent Act 1977 so as to apply to same-sex partners, in order to

110 For arguments for such an indirect horizontal effect of the HRA 1998, see (2000) 116 LRQ 217
(HW Wade); against, see (2000) 116 LQR 48 (R Buxton). The debate was not settled by the House of Lords:
Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at [18] and has been left open by the Supreme Court:
Manchester City Council v Pinnock, above, n 107, at [50].
111 HRA 1998, s 4(6).
112 Ibid, s 4(2), (4).
113 Ibid, s 3(1). Th is has the effect of protecting Convention rights in litigation between purely private
parties: Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, M & B p 109.

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AN INTRODUCTION TO LAND LAW

eliminate their discriminatory effect and so to comply with the Convention;114 and have
interpreted the provisions of the Land Registration Act 1925115 on adverse possession
in order to comply with Article 1 of the First Protocol.116 They have also considered
a number of cases in which public authorities have been alleged to have infringed
Convention rightsfor example in the exercise by public authority landlords of their
right to possession of premises against residential occupiers;117 but have also rejected
arguments that legislation affecting property rights is subject to challenge under the
Human Rights Act or is incompatible with Convention rights.118

114 Ghaidan v Godin-Mendoza above, n 113; below, p 381 (HRA 1998, s 3; Art 14 of the Convention, read
with Art 8).
115 S 75; below, p 1165. LRA 2002 has a different regime for adverse possession which complies with the
Convention: below, p 1166.
116 Beaulane Properties Ltd v Palmer [2006] Ch 79, p 1165, below; [2005] Conv 345 (Dixon); but see JA Pye
(Oxford) Ltd v United Kingdom [2008] 1 EGLR 111, pp 11656, below.
117 Most recently in a seven-judge Supreme Court in Hounslow LBC v Powell [2011] UKSC 8, [2011] 2
WLR 287, following a nine-judge Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45,
[2010] 3 WLR 1441, below, p 353 (Art 8), departing from the earlier decisions of the House of Lords in
Harrow LBC v Qazi [2003] UKHL 43, [2004] 1 AC 983, Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC
465 (HRA 1998, s 6 and Art 1 of the First Protocol) and Doherty v Birmingham CC [2008] UKHL 57, [2009]
1 AC 367 (Mobile Homes Act 1983 and Art 8). See also Smith v Evans [2007] EWCA Civ 1318, [2008] 1 WLR
661 (Caravan Sites Act 1968, s 4, as amended, and Art 8).
118 Horsham Properties Group Ltd v Clark [2008] EWHC 2327 (Ch), [2009] 1 WLR 1255, M&B 937, below,
p 855 (mortgagees power of sale without fi rst obtaining court order for possession); Lee v Leeds City Council
[2002] EWCA Civ 6, [2002] 1 WLR 1488, below, p 231 (landlords duty to repair under LTA 1985, s 11);
R (Coombes) v Secretary of State for Communities and Local Government [2010] EWHC 666, [2010] L & TR 29
(Protection from Eviction Act 1977, s 3, below, p 348).

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