Modern Land Law

Modern Land Law

Seventh edition

Modern Land Law offers a lively and thought-provoking account of a subject that remains at

the heart of our legal system. Dispelling any apprehension about the subject’s formidabil￾ity from the outset, this compact textbook provides an absorbing and exact analysis of all

the key legal principles relating to land.

Written with students firmly in mind, the principal features of this textbook include:

• a clear introduction to every chapter which frames each topic in its wider context;

• corresponding chapter summaries which help to consolidate learning and encourage

reflection;

• the use of tables and diagrams to aid understanding of complicated topics;

• a friendly two-colour text design which complements Martin Dixon’s comprehensible

and engaging writing.

Updated fully to include discussion of the most recent case law such as Halifax v Popeck,

Thompson v Foy and Thorner v Majors, Modern Land Law is one of the most current and reliable

textbooks available on land law today.

Dr Martin Dixon is a Reader in the Law of Real Property, Cambridge University and a

Fellow of Queens’ College Cambridge. He is visiting Professor of Law at City University,

London. He examines and writes extensively on property law and is a member of the

editorial team of The Conveyancer and Property Lawyer, the leading property law journal.

Modern Land Law

Seventh edition

Martin Dixon

Seventh edition Published 2010

by Routledge

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

Simultaneously published in the USA and Canada

by Routledge

270 Madison Avenue, New York, NY 10016

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

© 2010 Martin Dixon

The right of Martin Dixon to be identified 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.

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

First edition 1994

Second edition 1996

Third edition 1999

Fourth edition 2002

Fifth edition 2005

Sixth edition 2009

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.

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. – 7th ed.

p. cm.

1. Land tenure—Law and legislation—England. 2. Land tenure—Law and

legislation – Wales. I. Title.

KD833.D59 2010

346.4204′3 – dc22 2009053398

ISBN10: 0-415-57745-4 (hbk)

ISBN10: 0-415-57744-6 (pbk)

ISBN10: 0-203-84846-2 (eBook)

ISBN13: 978-0-415-57745-8 (hbk)

ISBN13: 978-0-415-57744-1 (pbk)

ISBN13: 978-0-203-84846-3 (eBook)

This edition published in the Taylor & Francis e-Library, 2010.

To purchase your own copy of this or any of Taylor & Francis or Routledge’s

collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.

ISBN 0-203-84846-2 Master e-book ISBN

To Cornflake

Outline Contents

List of Abbreviations xiv

Preface xv

Table of Cases xvii

Table of Statutes xxxi

Table of Statutory Instruments xxxix

Table of European Legislation xli

1 An Introduction to Modern Land Law 1

2 Registered Land 26

3 Unregistered Land 94

4 Co-ownership 124

5 Successive Interests in Land 184

6 Leases 202

7 The Law of Easements and Profits 266

8 Freehold Covenants 312

9 Licences and Proprietary Estoppel 343

10 The Law of Mortgages 378

11 Adverse Possession 427

Index 455

Detailed Contents

List of Abbreviations xiv

Preface xv

Table of Cases xvii

Table of Statutes xxxi

Table of Statutory Instruments xxxix

Table of European Legislation xli

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 9

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 17

1.6 The Distinction between Registered and Unregistered Land 19

1.7 Chapter Summary 22

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 43

2.6 The Operation of Registered Land: Unregistered Interests

that Override 48

2.7 The Operation of Registered Land: Protected Registered

Interests under the Land Registration Act 2002 72

2.8 Restrictions 79

2.9 The Operation of Registered Land: Overreaching 80

2.10 Alteration of the Register 84

2.11 Indemnity under the Land Registration Act 2002 88

2.12 An Overview of the Land Registration Act 2002 90

2.13 Chapter Summary 91

3 UNREGISTERED LAND 94

3.1 Unregistered Land: An Introduction to the System of

Unregistered Conveyancing 95

3.2 An Overview of Unregistered Land 97

3.3 Titles in Unregistered Land 100

3.4 Third-party Rights in Unregistered Land 102

3.5 The Purchaser of Unregistered Land and the Protection

of Legal Rights 103

3.6 The Purchaser of Unregistered Land and the Protection

of Equitable Interests: The Land Charges Act 1972 104

3.7 Overreachable Rights 115

3.8 A Residual Class of Equitable Interests in Unregistered

Conveyancing 117

3.9 Inherent Problems in the System of Unregistered Land 119

3.10 A Comparison with Registered Land 120

3.11 Chapter Summary 121

4 CO-OWNERSHIP 124

4.1 The Nature and Types of Concurrent Co-ownership 126

4.2 Joint Tenancy 126

4.3 Tenancy in Common 128

4.4 The Effect of the Law of Property Act 1925 and the

Trusts of Land and Appointment of Trustees Act 1996 129

4.5 The Distinction between Joint Tenancy and Tenancy in

Common in Practice: The Equitable Interest 132

4.6 The Statutory Machinery Governing Co-ownership 134

4.7 The Nature of the Unseverable Legal Joint Tenancy: The

Trust of Land 135

4.8 The Advantages of the 1925 and 1996 Legislative Reforms 138

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

Regulating Co-ownership 140

4.10 The Express and Implied Creation of Co-ownership in

Practice: Express, Resulting and Constructive Trusts 159

4.11 Severance 176

4.12 Chapter Summary 179

5 SUCCESSIVE INTERESTS IN LAND 184

5.1 Successive Interests: In General 185

5.2 Successive Interests under the Old Regime: The Strict

Settlement and the Settled Land Act 1925 191

5.3 The Trust for Sale of Land: Pre-TOLATA 1996 198

x DETAILED CONTENTS

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 198

5.5 Chapter Summary 199

6 LEASES 202

6.1 The Nature of a Lease 203

6.2 The Essential Characteristics of a Lease 205

6.3 The Creation of Legal and Equitable Leases 214

6.4 Leasehold Covenants 221

6.5 Rules for Leases Granted before 1 January 1996 223

6.6 The New Scheme – The Law Applicable to Tenancies

Granted on or after 1 January 1996: The Landlord and Tenant

(Covenants) Act 1995 238

6.7 The Landlord’s Remedies for Breach of Covenant 247

6.8 The Tenant’s Remedies for Breach of Covenant 258

6.9 Termination of Leases 259

6.10 Chapter Summary 261

7 THE LAW OF EASEMENTS AND PROFITS 266

7.1 The Nature of Easements as Interests in Land 267

7.2 The Essential Characteristics of an Easement 268

7.3 Legal and Equitable Easements: Formalities 275

7.4 Legal Easements 276

7.5 Equitable Easements 278

7.6 The Significance of the Distinction between Legal and

Equitable Easements in Practice: Easements and Purchasers of

the Dominant or Servient Tenement 279

7.7 The Creation of Easements 285

7.8 Express Creation 285

7.9 Implied Creation 287

7.10 Easements Resulting from Prescription 297

7.11 Methods of Establishing an Easement by Prescription 303

7.12 The Extinguishment of Easements 306

7.13 A Note on Profits à Prendre 306

7.14 Reform 307

7.15 Chapter Summary 307

8 FREEHOLD COVENANTS 312

8.1 The Nature of Freehold Covenants 314

8.2 The Relevance of Law and Equity and the Enforcement

of Covenants 316

DETAILED CONTENTS xi

8.3 The Factual Context for the Enforcement of Freehold

Covenants 317

8.4 Principle 1: Enforcing the Covenant in an Action

between the Original Covenantor and the

Original Covenantee 318

8.5 Principle 2: Enforcing the Covenant against Successors

in Title to the Original Covenantor – Passing the Burden 320

8.6 Principle 3: Passing the Benefit of a Covenant to

Successors in Title to the Original Covenantee 328

8.7 Escaping the Confines of the Law: Can the Burden of

Positive Covenants be Enforced by Other Means? 335

8.8 Chapter Summary 340

9 LICENCES AND PROPRIETARY ESTOPPEL 343

9.1 Licences 344

9.2 The Essential Nature of a Licence 344

9.3 Types of Licence 347

9.4 Proprietary Estoppel 356

9.5 Conditions for the Operation of Proprietary Estoppel 358

9.6 What is the Result of a Successful Plea of Proprietary

Estoppel? 366

9.7 The Nature of Proprietary Estoppel and its Effect on Third

Parties 368

9.8 Proprietary Estoppel and Constructive Trusts 372

9.9 Chapter Summary 374

10 THE LAW OF MORTGAGES 378

10.1 The Essential Nature of a Mortgage 379

10.2 The Creation of Mortgages before 1925 383

10.3 The Creation of Legal Mortgages on or after 1 January

1926 384

10.4 Legal Mortgages of Freehold Property: Unregistered

Land and Registered Freehold Titles Mortgaged before

13 October 2003 384

10.5 Legal Mortgages of Leasehold Property: Unregistered

Leases and Registered Leasehold Titles Mortgaged before

13 October 2003 386

10.6 Legal Mortgages of Registered Titles under the Land

Registration Act 2002 387

10.7 Registration of Legal Mortgages under the Land

Registration Act 2002 388

xii DETAILED CONTENTS

10.8 Equitable Mortgages 388

10.9 The Rights of the Mortgagor: The Equity of Redemption 393

10.10 The Rights of the Mortgagee under a Legal Mortgage:

Remedies for Default 409

10.11 The Rights of a Mortgagee under an Equitable Mortgage 423

10.12 Chapter Summary 423

11 ADVERSE POSSESSION 427

11.1 How is Adverse Possession Established? The Rules

Common to Unregistered and Registered Land 430

11.2 The Basic Principle of Adverse Possession in

Unregistered Land 435

11.3 Adverse Possession under the Land Registration Act 1925 443

11.4 Adverse Possession under the Land Registration Act 2002 444

11.5 Adverse Possession and Human Rights 449

11.6 Chapter Summary 451

Index 455

DETAILED CONTENTS xiii

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

LT(C)A 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