Introduction to Land Law

Introduction to

Land Law

S E C O N D EDITION

Roger J. Smith

Roger Smith’s Introduction to Land Law presents a

straightforward account of the law and its effects, giving

a clear and accessible explanation of concepts students

often fi nd diffi cult to grasp. It illuminates the interesting

and thought-provoking issues stemming from land law.

A unique chapter structure allows students to understand

the fundamental place and practice of each subject area

before delving into some of the deeper matters they will

be expected to engage with throughout their course:

• Nature and importance sets out, by use of

examples, how the law functions and why it is

important.

• Main issues and rules clearly explains the key

principles in detail, including case analysis and

diagrams where helpful.

• Critical and controversial issues introduces areas

of topical debate and controversy, outlining the key

issues and arguments, then encouraging students to

form their own assessment of the law in each area.

The book also provides:

• Introductory chapters that explain what land law

is and why it is important, the difference between

land law and other forms of property law, and the

increasingly important relationship between land law

and human rights.

• A fully cross-referenced glossary with clear defi nitions

of the technical and often archaic terms encountered

in land law.

• Fully supported by mylawchamber, with useful

online resources for assessment and learning support

at www.mylawchamber.co.uk/smithintro.

Roger J. Smith teaches law at Magdalen College,

University of Oxford. He is also the author of two very

successful in-depth treatments of the subject: Property

Law, sixth edition, and Property Law: Cases and Materials,

fourth edition, both published by Longman.

www.pearson-books.com

Introduction to Land Law Roger J. Smith

S E C O N D

EDITION

The LexisNexis element of Case Navigator is only available to those who currently

subscribe to LexisNexis Butterworths services.

POWERED BY

CASE

N A V I G AT O R

Visit www.mylawchamber.co.uk/smithintro

to access interactive quizzes, sample

exam questions with answer guidance, and

fl ashcards, all designed so that you can

test yourself on topics covered in this book.

There are also live weblinks and regular legal

updates to help you impress lecturers and

examiners with your knowledge of the latest

developments in land law.

Do you want to give yourself a head start come

exam time?

Worried about getting to grips with cases?

Case Navigator offers unique online support

that helps you improve your case reading and

analysis skills in land law.

Lecturers: Register online for access to a

testbank of multiple-choice questions that can

be customised and used to assess students’

progress.

‘The text is clear and easy to understand. It explains the issues very well indeed

without over-simplifying fundamental points.’

Dr Janine Griffi ths-Baker, Senior Lecturer, School of Law, University of Bristol

‘A clear, concise and accurate introductory text written by a leading authority in land law.’

Dr Antonia Layard, Lecturer, School of Law, Cardiff University

‘Comprehensive and well-structured.’

Shan Cole, Senior Lecturer, School of Law, University of Glamorgan

CVR_SMIT2607_02_SE_CVR.indd 1 8/2/10 10:45:32

Introduction to Land Law

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page i

ISBN: 9781405873468

The perfect companion to use

alongside your textbook.

Available at all good bookshops or order online at:

www.pearsoned.co.uk/law

Includes all the cases and materials you are likely

to need for your course.

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page ii

Roger J. Smith

Magdalen College, Oxford

Introduction to

Land Law

2nd

edition

2nd

edition

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page iii

Pearson Education Limited

Edinburgh Gate

Harlow

Essex CM20 2JE

England

and Associated Companies throughout the world

Visit us on the World Wide Web at:

www.pearsoned.co.uk

First published 2007

Second edition published 2010

© Pearson Education Limited 2007, 2010

The right of Roger J. Smith to be identified as author of this work has been

asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted in any form or by any means, electronic,

mechanical, photocopying, recording or otherwise, without either the prior

written permission of the publisher or a licence permitting restricted copying

in the United Kingdom issued by the Copyright Licensing Agency Ltd,

Saffron House, 6–10 Kirby Street, London EC1N 8TS.

Crown Copyright material is reproduced with the permission of the Controller

of HMSO and the Queen’s Printer for Scotland.

Law Commission Reports are reproduced under the terms of the Click-Use Licence.

ISBN: 978-1-4082-2260-7

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.

Library of Congress Cataloging-in-Publication Data

Smith, Roger J. (Roger John), 1948–

Introduction to land law / Roger J. Smith. – 2nd ed.

p. cm.

ISBN 978-1-4082-2260-7 (pbk.)

1. Real property–England. I. Title.

KD829.S627 2010

346.4204′3–dc22

2009050100

10 9 8 7 6 5 4 3 2 1

14 13 12 11 10

Typeset in 9.5/13 pt Stone Sans by 35.

Printed and bound in Great Britain by Henry Ling Ltd, Dorchester, Dorset.

The publisher’s policy is to use paper manufactured from sustainable forests.

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page iv

v

Preface to second edition xiv

Acknowledgement xvi

Table of cases xvii

Table of legislation xxiii

Part 1 Introduction to land law 1

1 Introducing land law 3

2 Trusts and equitable interests 11

3 Legislative reform: 1925 to 2002 15

4 Land and other property 22

5 Human rights 26

Part 2 Acquiring interests and binding purchasers 33

6 Adverse possession and fixtures 35

7 Transfer and creation of interests in land 50

8 Estoppel 71

9 Ownership of the family home 89

10 Priorities 108

Part 3 Rights to enjoy land 131

11 Successive and concurrent ownership 133

12 Trusts of land 148

13 Leases: types and requirements 172

14 Leases: obligations and remedies 192

Part 4 Other interests in land 219

15 Licences 221

16 Easements 234

17 Covenants 256

18 Mortgages 273

Glossary 294

Index 299

Brief contents

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page v

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page vi

vii

Preface to second edition xiv

Acknowledgement xvi

Table of cases xvii

Table of legislation xxiii

Part 1 INTRODUCTION TO LAND LAW 1

1 Introducing land law 3

What is land law? 3

What issues arise in land law? 4

Interests in land 5

Splitting ownership 6

Other interests in land 7

Why have a list of interests in land? 9

2 Trusts and equitable interests 11

The trust 11

Other equitable interests: remedies 12

Equitable interests in the modern law 13

3 Legislative reform: 1925 to 2002 15

A strategy for estates 15

Freehold estates 16

Leasehold estates 17

Registration of title 17

A strategy for interests other than estates 18

An interim solution: land charges legislation 18

The modern solution: registration of title 18

Commonhold: a new estate? 19

Conclusions 21

4 Land and other property 22

The range of proprietary interests recognised 22

The significance of possession 23

Formalities 23

Contents

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page vii

Contents

viii

Registration 23

Land as a home 24

Land and the 1925 legislation 24

Conclusions 25

5 Human rights 26

Convention rights 26

Enforcement of Convention rights 28

Human rights in the enforcement of property rights 29

Assessing human rights in land law 30

Part 2 ACQUIRING INTERESTS AND BINDING

PURCHASERS 33

6 Adverse possession and fixtures 35

Nature and importance 35

Main issues and rules: adverse possession 35

Introduction 35

Adverse possession under the Land Registration Act 2002 36

When is there adverse possession? 38

Critical and controversial issues: adverse possession 43

Justifications for adverse possession 43

The human rights challenge 44

Is adverse possession justified today? 45

Main issues and rules: fixtures 45

The significance of fixtures 46

When is there a fixture? 47

Rights to remove fixtures 48

Assessing the law on fixtures 49

7 Transfer and creation of interests in land 50

Nature and importance 50

The importance of formalities 50

Main issues and rules 51

Transfers of land 51

Creating interests in land 55

Trusts 56

Critical and controversial issues 61

The reasons for formality rules 61

Electronic conveyancing 64

8 Estoppel 71

Nature and importance 71

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page viii

Contents

ix

Main issues and rules 73

When will estoppel arise? 73

The remedy 77

Estoppel as a proprietary claim 77

Benefit and burden 79

Critical and controversial issues 80

Enforcing promises 80

Remedies 85

Conclusions 87

9 Ownership of the family home 89

Nature and importance 89

Main issues and rules 90

Express declarations of trust 90

Transfer into joint names 91

Transfer into a single name 92

Quantifying the shares 97

Critical and controversial issues 100

The impact of Stack in single name transfers 100

Reform 102

Estoppel and constructive trusts 103

10 Priorities 108

Nature and importance 108

Main issues and rules 109

Legal and equitable priority rules 109

The need for reform 110

Land charges 111

Land registration 112

Critical and controversial issues 122

Purchasers with actual notice 122

Actual occupation 124

Part 3 RIGHTS TO ENJOY LAND 131

11 Successive and concurrent ownership 133

Nature and importance 133

Main issues and rules: successive interests 134

What interests are recognised? 134

Creation of successive interests 135

Vesting and perpetuity rules 135

The operation of the interests 136

Main issues and rules: concurrent interests 136

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page ix

Contents

x

Joint tenancy or tenancy in common? 136

Severance of joint tenancies 139

Critical and controversial issues 142

Severance by mutual agreement and course of conduct 142

The future of the equitable joint tenancy 145

12 Trusts of land 148

Nature and importance 148

The need for regulation: successive interests 148

Extension of regulation to concurrent interests 149

A single regulatory regime for successive and concurrent interests 150

Main issues and rules 151

When is there a trust of land? 151

Trustees’ powers and their exercise 152

The role of the court 154

Delegation 157

Occupation 157

Overreaching 160

Trusts for sale 163

Critical and controversial issues 164

Bankruptcy 164

Secured creditors 167

Other successors in title 170

Conclusions 171

13 Leases: types and requirements 172

Nature and importance 172

Main issues and rules 173

Requirements of leases 173

Types of lease 175

Critical and controversial issues 181

Importance and early history 181

Street v Mountford 182

Shams and lodgers 183

Exceptional cases 186

Joint occupiers 186

The state of the law today 190

14 Leases: obligations and remedies 192

Nature and importance 192

Main issues and rules 193

Implied obligations 193

Enforcing obligations: landlords’ obligations 196

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page x

Contents

xi

Enforcing obligations: tenants’ obligations 198

Who is liable on covenants? 203

Critical and controversial issues 211

Leases as contracts 211

Liability of assignors for breaches after assignment 214

Part 4 OTHER INTERESTS IN LAND 219

15 Licences 221

Nature and importance 221

What are licences? 221

Distinguishing the methods of protection 222

Should we be worried about licences as interests in land? 222

Main issues and rules 223

Contractual licences: licensor and licensee 223

Contractual licences: licensee and purchaser 225

Remedies available to licensees 226

Critical and controversial issues 227

Constructive trusts 227

Licences protected by estoppel 230

16 Easements 234

Nature and importance 234

Main issues and rules 235

What can be an easement or profit? 235

Creation of easements 239

The extent of the easement 241

Termination of easements 242

Critical and controversial issues 243

Possession claims 243

Implied easements 246

17 Covenants 256

Nature and importance 256

Main issues and rules: restrictive covenants 257

Requirements 257

Running of the burden 258

Running of the benefit 258

The operation of restrictive covenants 263

Main issues and rules: positive covenants 264

Passing the burden 264

Passing the benefit 265

Critical and controversial issues 266

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page xi

Contents

xii

Annexation 266

Positive covenants 268

Comparisons 269

Conclusions 271

18 Mortgages 273

Nature and importance 273

Main issues and rules 274

Types of mortgage 274

Vitiating factors 275

Rules protecting borrowers 275

Rights and remedies of the lender 279

Critical and controversial issues 283

Misrepresentation and undue influence 283

Statutory limits on the lender’s right to possession 288

Glossary 294

Index 299

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page xii

xiii

Visit the Introduction to Land Law, second edition,

mylawchamber site at

www.mylawchamber.co.uk/smithintro

to access valuable learning material.

FOR STUDENTS

Companion website support

Do you want to give yourself a head start come exam time?

● Study exam-style questions with answer guidance to prepare for exam success.

● Test yourself with interactive multiple-choice quizzes on the main topics in land law.

● Check updates to major changes in the law to stay ahead of the game by knowing the

latest developments.

● Use the online glossary for quick reference to key terms in land law.

● Improve your recall and comprehension of key terms with flashcards.

● Weblinks direct you to online resources where you can find out more about land law.

Case Navigator*

Worried about getting to grips with cases?

This unique online support helps you to improve your case reading and

analysis skills.

● Direct deep links to the core cases in land law.

● Short introductions provide guidance on what you should look out for while reading

the case.

● Questions help you to test your understanding of the case, and provide feedback on

what you should have grasped.

● Summaries contextualise the case and point you to further reading so that you are fully

prepared for seminars and discussions.

Also: The regularly maintained companion website provides the following features:

● Search tool to help locate specific items of content.

● Online help and support to assist with website usage and troubleshooting.

For more information please contact your local Pearson Longman sales representative or

visit www.mylawchamber.co.uk/smithintro.

*Please note that access to Case Navigator is free with the purchase of this book, but you must register with

us for access. Full registration instructions are available on the website. The LexisNexis element of Case

Navigator is only available to those who currently subscribe to LexisNexis Butterworths online.

CASE

N A V I G AT O R

POWERED BY

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page xiii

There have been some very significant developments since the first edition was published,

mostly resulting from decisions of the House of Lords. In particular, Stack v Dowden and

later developments regarding ownership of the family home have required much of

Chapter 9 to be restructured and rewritten. The somewhat contradictory decisions on

estoppel in Cobbe v Yeoman’s Row Management Ltd and Thorner v Major have required

discussion, though there is less change in the law than had seemed likely at one stage.

Finally, the discussion of the right to park in Moncrieff v Jamieson has required revision

of parts of Chapter 16 (Easements). Other less dramatic developments have, of course,

also been incorporated. Though there have been no major statutory changes, the Law

Commission’s Consultation Paper on easements and covenants features in Chapters 16

and 17.

The general objectives of the book and its approach remain as described below for the

first edition.

Preface to first edition

This book is written to introduce students to fundamental principles of land law. Over the

years, land law has gained a reputation as a difficult subject. In part this is because much

of it is statutory, in part because it contains a fair amount of detail and in part because

students are usually unfamiliar with dealings with land. These factors can mask the

reality that land law raises numerous interesting issues, most of which are socially and

economically important.

The approach adopted in the book is first to explain the general role and rules of each

topic and then to consider a few specific issues in more detail. These last issues have been

chosen as those which are most controversial and which frequently appear in examina￾tion questions. Leaving aside the five introductory chapters in Part 1, each chapter is divided

into three sections. First, there is a quite short introduction, considering the nature and

importance of the topic. Next, a section ‘Main issues and rules’ summarises the essential

rules and principles. It is usually impossible to contribute to the most interesting questions

before understanding these rules and principles. Finally, the ‘Critical and controversial

issues’ section goes into rather more detail on selected issues. The object here is to demon￾strate how land law topics raise interesting, important and challenging questions. They

are approached at a level of depth similar to that of land law textbooks, though without

heavy citation of supporting authorities. Throughout the book, footnote references have

been kept to a minimum. The guiding principle has been to cite those cases and statutory

Preface to second edition

xiv

A01_SMIT2607_01_SE_FM.QXD 2/3/10 4:04 PM Page xiv