Modern land law

modern land law

Martin Dixon

eighth edition

Modern Land Law

Eighth Edition

Martin Dixon, Reader in the Law

of Real Property, Queens’ College,

Cambridge

Eighth edition published 2012

by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Simultaneously published in the USA and Canada

by Routledge

711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2012 Martin Dixon

The right of Martin Dixon to be identifi ed as author of this work has been asserted by

him in accordance with sections 77 and 78 of the Copyright, Designs and Patents

Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in

any form or by any electronic, mechanical, or other means, now known or hereafter

invented, including photocopying and recording, or in any information storage or

retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks,

and are used only for identifi cation and explanation without intent to infringe.

First edition published as Principles in Land Law by Cavendish Publishing 1994

Seventh edition published by Routledge 2010

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

Dixon, Martin, MA.

Modern land law / Martin Dixon.—8th ed.

p. cm.

ISBN 978-0-415-69438-4 (hardback)—ISBN 978-0-415-69054-6 (paperback)

—ISBN 978-0-203-10311-1 (ebook) 1. Land tenure—Law and legislation—England.

2. Land tenure—Law and legislation—Wales. I. Title.

KD833.D59 2012

346.4204'3—dc23

2012006223

ISBN: 978-0-415-69438-4 (hbk)

ISBN: 978-0-415-69054-6 (pbk)

ISBN: 978-0-203-10311-1 (ebk)

Typeset in Joanna

by Refi neCatch Limited, Bungay, Suffolk

To Cornfl ake

Outline Contents

List of Abbreviations xii

Preface xiii

Guide to the Companion Website xv

Table of Cases xvii

Table of Statutes xxxii

Table of Statutory Instruments xxxviii

Table of European Legislation xxxix

1 An Introduction to Modern Land Law 1

2 Registered Land 26

3 Unregistered Land 95

4 Co-ownership 126

5 Successive Interests in Land 191

6 Leases 210

7 The Law of Easements and Profi ts 275

8 Freehold Covenants 322

9 Licences and Proprietary Estoppel 354

10 The Law of Mortgages 390

11 Adverse Possession 441

Index 471

Detailed Contents

List of Abbreviations xii

Preface xiii

Guide to the Companion Website xv

Table of Cases xvii

Table of Statutes xxxii

Table of Statutory Instruments xxxviii

Table of European Legislation xxxix

1 AN INTRODUCTION TO MODERN LAND LAW 1

1.1 The Nature and Scope of the Law of Real Property 3

1.2 Types of Proprietary Right 6

1.3 The Legal or Equitable Quality of Proprietary Rights 10

1.4 The Consequences of the Distinction between Legal and

Equitable Property Rights 16

1.5 The 1925 Property Legislation and the Land Registration Act 2002 18

1.6 The Distinction between Registered and Unregistered Land 19

1.7 Chapter Summary 23

2 REGISTERED LAND 26

2.1 The Basic Concept of Title Registration 28

2.2 The Nature and Purpose of the System of Registered Land 31

2.3 The Three Fundamental Operating Principles of Registered Land 33

2.4 An Overview of the Registered Land System Under

the Land Registration Act 2002 36

2.5 The Operation of Registered Land: Titles 44

2.6 The Operation of Registered Land: Unregistered Interests

which Override 48

2.7 The Operation of Registered Land: Protected Registered

Interests under the Land Registration Act 2002 73

2.8 Restrictions 80

2.9 The Operation of Registered Land: Overreaching 81

2.10 Alteration of the Register 85

2.11 Indemnity under the Land Registration Act 2002 89

2.12 An Overview of the Land Registration Act 2002 91

2.13 Chapter Summary 92

viii DETAILED CONTENTS

3 UNREGISTERED LAND 95

3.1 Unregistered Land: An Introduction to the System of

Unregistered Conveyancing 96

3.2 An Overview of Unregistered Land 98

3.3 Titles in Unregistered Land 101

3.4 Third-party Rights in Unregistered Land 103

3.5 The Purchaser of Unregistered Land and the Protection

of Legal Rights 104

3.6 The Purchaser of Unregistered Land and the Protection

of Equitable Interests: The Land Charges Act 1972 105

3.7 Overreachable Rights 116

3.8 A Residual Class of Equitable Interests in Unregistered

Conveyancing 118

3.9 Inherent Problems in the System of Unregistered Land 120

3.10 A Comparison with Registered Land 122

3.11 Chapter Summary 123

4 CO-OWNERSHIP 126

4.1 The Nature and Types of Concurrent Co-ownership 128

4.2 Joint Tenancy 128

4.3 Tenancy in Common 130

4.4 The Effect of the Law of Property Act 1925 and

the Trusts of Land and Appointment of Trustees Act 1996 131

4.5 The Distinction between Joint Tenancy and Tenancy

in Common in Practice: The Equitable Interest 134

4.6 The Statutory Machinery Governing Co-ownership 137

4.7 The Nature of the Unseverable Legal Joint Tenancy:

The Trust of Land 138

4.8 The Advantages of the 1925 and 1996 Legislative Reforms 141

4.9 The Disadvantages of the Trust of Land as a Device for

Regulating Co-ownership 143

4.10 The Express and Implied Creation of Co-ownership in

Practice: Express, Resulting and Constructive Trusts 162

4.11 Severance 181

4.12 Chapter Summary 185

5 SUCCESSIVE INTERESTS IN LAND 191

5.1 Successive Interests: In General 192

5.2 Successive Interests Under the Old Regime: The Strict

Settlement and the Settled Land Act 1925 198

5.3 The Trust for Sale of Land: Pre-TOLATA 1996 205

DETAILED CONTENTS ix

5.4 A Comparison between the Strict Settlement under the Settled

Land Act 1925 and the Regime of the Trusts of

Land and Appointment of Trustees Act 1996 205

5.5 Chapter Summary 206

6 LEASES 210

6.1 The Nature of a Lease 211

6.2 The Essential Characteristics of a Lease 213

6.3 The Creation of Legal and Equitable Leases 222

6.4 Leasehold Covenants 230

6.5 Rules for Leases Granted before 1 January 1996 231

6.6 The New Scheme – The Law Applicable to Tenancies

Granted on or after 1 January 1996: The Landlord and

Tenant (Covenants) Act 1995 247

6.7 The Landlord’s Remedies for Breach of Covenant 256

6.8 The Tenant’s Remedies for Breach of Covenant 267

6.9 Termination of Leases 268

6.10 Chapter Summary 270

7 THE LAW OF EASEMENTS AND PROFITS 275

7.1 The Nature of Easements as Interests in Land 276

7.2 The Essential Characteristics of an Easement 276

7.3 Legal and Equitable Easements: Formalities 285

7.4 Legal Easements 285

7.5 Equitable Easements 287

7.6 The Signifi cance of the Distinction between Legal and

Equitable Easements in Practice: Easements and

Purchasers of the Dominant or Servient Tenement 288

7.7 The Creation of Easements 294

7.8 Express Creation 295

7.9 Implied Creation 296

7.10 Easements Resulting from Prescription 307

7.11 Methods of Establishing an Easement by Prescription 313

7.12 The Extinguishment of Easements 316

7.13 A Note on Profi ts à Prendre 316

7.14 Reform 317

7.15 Chapter Summary 317

8 FREEHOLD COVENANTS 322

8.1 The Nature of Freehold Covenants 324

8.2 The Relevance of Law and Equity and the Enforcement of Covenants 326

x DETAILED CONTENTS

8.3 The Factual Context for the Enforcement of Freehold Covenants 327

8.4 Principle 1: Enforcing the Covenant in an Action between

the Original Covenantor and the Original Covenantee 328

8.5 Principle 2: Enforcing the Covenant against Successors

in Title to the Original Covenantor – Passing the Burden 330

8.6 Principle 3: Passing the Benefi t of a Covenant to Successors

in Title to the Original Covenantee 337

8.7 Escaping the Confi nes of the Rules: Can the Burden of

Positive Covenants be Enforced by Other Means? 345

8.8 Chapter Summary 350

9 LICENCES AND PROPRIETARY ESTOPPEL 354

9.1 Licences 355

9.2 The Essential Nature of a Licence 355

9.3 Types of Licence 358

9.4 Proprietary Estoppel 367

9.5 Conditions for the Operation of Proprietary Estoppel 369

9.6 What is the Result of a Successful Plea of Proprietary Estoppel? 378

9.7 The Nature of Proprietary Estoppel and its Effect on Third Parties 379

9.8 Proprietary Estoppel and Constructive Trusts 384

9.9 Chapter Summary 386

10 THE LAW OF MORTGAGES 390

10.1 The Essential Nature of a Mortgage 391

10.2 The Creation of Mortgages before 1925 396

10.3 The Creation of Legal Mortgages on or after 1 January 1926 396

10.4 Legal Mortgages of Freehold Property: Unregistered Land and

Registered Freehold Titles Mortgaged before 13 October 2003 397

10.5 Legal Mortgages of Leasehold Property: Unregistered Leases and

Registered Leasehold Titles Mortgaged before 13 October 2003 398

10.6 Legal Mortgages of Registered Titles under the

Land Registration Act 2002 399

10.7 Registration of Legal Mortgages under the

Land Registration Act 2002 400

10.8 Equitable Mortgages 401

10.9 The Rights of the Mortgagor: The Equity of Redemption 406

10.10 The Rights of the Mortgagee under a Legal Mortgage:

Remedies for Default 422

10.11 The Rights of a Mortgagee under an Equitable Mortgage 436

10.12 Chapter Summary 436

DETAILED CONTENTS xi

11 ADVERSE POSSESSION 441

11.1 How is Adverse Possession Established? The Rules Common

to Unregistered and Registered Land 444

11.2 The Basic Principle of Adverse Possession in Unregistered Land 449

11.3 Adverse Possession under the Land Registration Act 1925 457

11.4 Adverse Possession under the Land Registration Act 2002 458

11.5 Adverse Possession and Human Rights 464

11.6 Chapter Summary 466

Index 471

List of Abbreviations

Terms

AGA Authorised Guarantee Agreement

CRAR Commercial Rent Arrears Recovery

Legislation

AJA Administration of Justice Act

CCA Consumer Credit Act

CLRA Commonhold and Leasehold Reform Act

ECHR European Convention for the Protection of Human Rights and Fundamental

Freedoms

FLA Family Law Act

FSMA Financial Services and Markets Act

LA Limitation Act

LCA Land Charges Act

LPA Law of Property Act

LP(MP)A Law of Property (Miscellaneous Provisions) Act

LRA Land Registration Act

LRR Land Registration Rules

LTCA Landlord and Tenants (Covenants) Act

SLA Settled Land Act

TOLATA Trusts of Land and Appointment of Trustees Act

Journals

CLJ Cambridge Law Journal

Conv The Conveyancer and Property Lawyer

CLP Current Legal Problems

LQR Law Quarterly Review

LS Legal Studies

MLR Modern Law Review

SLR Student Law Review

SLRYB Student Law Review Yearbook

Preface

Approaching land law for the fi rst time can seem a daunting prospect. A major aim of

this text is to dispel fears and to explain land law in an understandable and logical way.

No attempt has been made to minimise the complexities of the subject simply to make it

attractive or readable, for that benefi ts no one. However, the text is designed to explode

the myths and mysteries of land law and substitute instead a picture that is both detailed

and comprehensible. There is no denying that land law is different from other subjects,

not least because its language is at fi rst unfamiliar. But different does not mean diffi cult.

Similarly, there is a common belief that land law is boring, not as sexy or apparently rele￾vant as other legal disciplines. This too is misplaced, for land law remains at the heart of the

legal system and is the vehicle for so much that concerns our everyday lives, both at home

and work. Seen in context, the issues raised in land law are as challenging and as topical as

any that other law courses have to offer.

Land law is also a subject steeped in history. Many of the concepts and much of the

language have their origin in centuries old legal tradition. However, the historical dimen￾sion of land law – which in its own right is a fascinating topic for those with a passion for

social and legal history – should not blind us to the reality that we live in the twenty-fi rst

century and that the everyday principles of land law have moved on. The great reforms

of 1922–25 that gave birth to the reforming property law legislation of 1925 no longer

seem radical and unfamiliar, and the entry into force of the Land Registration Act 2002 on

13 October 2003 heralded a new era. Of course, what we have now owes much to what

we once had, but land law is a modern subject and our system is geared up to be the fi rst

in the world that moves away from paper transactions in favour of electronic dealings.

That said, I have resisted the temptation, which was never very great, to present land law

as some kind of trendy, modernist social construct. The need for modern teaching of a

modern subject does not mean the abandonment of a method of analysis that has stood

the test of time. This is a book about law, based on our traditional understanding of the

foundations of property law, albeit that concepts, principles and rules which are of purely

historical interest have been omitted.

Land law is like a jigsaw and this book aims to explain the rules and principles and how

they fi t together to form a coherent whole. The arrangement of the chapters is intended to

facilitate the growth of a steady understanding of each topic and its place within the jigsaw.

Many pieces are needed before the jigsaw shows a picture, so the text aims at an accumula￾tion of understanding rather than dropping the reader in at the deep end. There has been

important case law since the previous edition and the Land Registration Act 2002 has been

in force for nearly ten years. The Supreme Court has been active – Jones v. Kernott and Berrisford

v. Mexfi eld both may come to be regarded as watershed decisions for modern land law – and

there have been many cases in the lower courts that have been woven into the text. The

general shape of the text is the same as in the previous edition, but perhaps this is the

edition that has been re-written most to take account of new developments. My aim has

remained, however, to help the reader swim with the subject, rather than watch them

drown in the detail.

As ever – and it bears repetition – I am genuinely grateful to many current and former

students who continue to raise questions about land law that require thought and refl ec￾tion. They have done much to sharpen my thoughts and to save me (I hope) from serious

xiv PREFACE

error. My wife and children have not yet moved to active guerrilla warfare in response to

my attempts to persuade them that law – and land law in particular – is fascinating and

elegant, but I suspect that this day is not far off. I expect soon to fi nd that my study has been

relocated to the chicken shed. Finally, I cannot let this moment pass without remarking on

that great day in May 2012 – the 19th to be exact – when St Drogba brought football home

to West London.

Martin Dixon

Queens’ College, Cambridge

May 2012

Guide to the Companion Website

www.routledge.com/cw/dixon

For Lecturers

Testbank

Download a fully customisable bank of questions

which test your students’ understanding of land

law. These can be migrated to your university’s

Visual Learning Environment so that they can be

customised and used to track student progress.

For Students

Multiple Choice Questions

Test your understanding of land law with more

than 150 online questions, including statute and

case law quizzes.

Essay Questions

Over 30 open essay and problem-based questions

for exam practice and to help deepen your

understanding of complex issues and perfect your

exam technique.

Podcasts

13 podcasts divided by topic and updated with any

land law cases, complex topics or issues in the news.

Additional Reading

Stay up to date with the latest developments in

Land Law by downloading Martin Dixon’s latest

articles from the Student Law Review.

Table of Cases

A

Abbey National Bank plc v. Stringer [2006]

EWCA Civ 338 … 135, 163, 179, 418

Abbey National Building Society v. Cann

[1991] 1 All ER 1985 … 54, 62, 71, 156,

157, 393, 394

Abbey National Building Society v. Maybeech

Ltd [1984] 3 All ER 262 … 265

Abbott v. Abbott [2007] UKPC 53 … 127,

168, 170

Aberconway, Re [1953] Ch 647 … 202

Actionstrength Ltd v. International Glass

Engineering SpA [2003] UKHL 17 … 403

AG Securities v. Vaughan; Antoniades v. Villiers

[1990] 1 AC 417; [1988] 3 All ER 1058 …

129, 213, 215

Ajibade v. Bank of Scotland (2006) … 89

Albany Homes Loans v. Massey [1997] 2 All ER

609; [1997] SLRYB 159 … 414, 433

Aldred, Re (1610) 9 Co Rep 57b … 281

Alliance and Leicester plc v. Slayford [2001] 1

All ER (Comm) 1; [2000] NLJR 1590 …

152, 391, 411, 422, 423

Allied Irish Bank v. Byrne [1995] 2 FLR 325 …

411, 414, 419

Allied London Investments Ltd v. Hambro Life

Assurance Ltd (1984) 269 EG41; 270 EG

948 … 232

Alston (J) and Sons Ltd v. BOCM Pauls Ltd

[2008] EWHC 3310 (Ch) … 446

Amana Holdings Ltd v. Fakhir Shatub al-Darraji

(2003) … 264

Ambrose v. Ambrose (2012) … 171, 172,

178

Amsprop Trading Ltd v. Harris Distribution

[1996] NPC 154 … 330

Antoniades v. Villiers [1990] 1 AC 417 … 130,

213, 215, 218

Archangel v. Lambeth London Borough Council

[2000] All ER (D) 2077 … 447

Argyle Building Society v. Hammond (1984)

49 P & CR 148 … 44

Arlesford Trading v. Servansingh [1971] 1 WLR

1080 … 240

Armstrong and Holmes v. Holmes (1993) The

Times, 23 June … 108, 240

Ashburn Anstalt v. Arnold [1989] Ch 1 … 221,

362, 364

Asher v. Whitlock [1865] LR 1 QB 1 … 457

Aslan v. Murphy [1989] 3 All ER 130 … 213,

215

Aston Cantlow v. Wallbank [2003] UKHL 37;

[2002] Ch 51 … 59, 345

Attorney General for Hong Kong v. Humphreys

[1987] AC 114 … 376

Austen, Re [1929] 2 Ch 155 … 198

Austerberry v. Oldham Corporation (1885) 29

Ch D 750 … 345

B

Babic v. Thompson [1999] 02 LS Gaz R 30;

[1999] 03 LS Gaz R 33 … 165

Bailey v. Stevens (1862) 12 CB (NS) 99 …

279

Bakewell Management Ltd v. Brandwood

[2004] UKHL 14 … 312, 313

Banco Exterior Internacional v. Mann [1995] 1

All ER 936 … 414

Banco Exterior Internacional v. Thomas [1997]

1 All ER 46 … 411

Bank of India v. Mody [1998] 12 LS Gaz R 29

… 167

Bank of Ireland Home Mortgages Ltd v. Bell

[2001] 2 FLR 809 … 145, 146-7, 151

Bank of Ireland Home Mortgages v. South

Lodge [1996] 14 EG 92; [1996] SLRYB 166

… 261, 264

Bank of Scotland v. Bennett (1998) unreported

… 411, 414

Bank of Scotland v. Grimes [1985] QB 1179 …

429

Bank of Scotland v. Hill [2002] … 417

Bank of Scotland v. Qutb see Bank of Scotland v.

Hussain

Banker’s Trust Co v. Namdar [1997] NPC 22;

[1997] EGCS 20 … 146, 151, 184, 401

Barca v. Mears [2004] EWHC 2170 (Ch);

[2005] 2 FLR 1 … 149, 152, 434