Principles of Land Law

Cavendish

Publishing

Limited

London • Sydney

Principles of

Land Law

Fourth Edition

EDITORIAL ADVISORY BOARD

PRINCIPLES OF LAW SERIES

Professor Paul Dobson

Visiting Professor at Anglia Polytechnic University

Professor Nigel Gravells

Professor of English Law, Nottingham University

Professor Phillip Kenny

Professor and Head of the Law School, Northumbria University

Professor Richard Kidner

Professor and Head of the Law Department, University of Wales,

Aberystwyth

In order to ensure that the material presented by each title maintains the

necessary balance between thoroughness in content and accessibility in

arrangement, each title in the series has been read and approved by an

independent specialist under the aegis of the Editorial Board. The Editorial

Board oversees the development of the series as a whole, ensuring a conformity

in all these vital aspects.

Cavendish

Publishing

Limited

London • Sydney

Principles of

Land Law

Fourth Edition

Martin Dixon, MA

Fellow and University Senior Lecturer in Law

Queens’ College, University of Cambridge

Fourth edition first published in Great Britain 2002 by Cavendish Publishing

Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom

Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080

Email: [email protected]

Website: www.cavendishpublishing.com

© Dixon, Martin 2002

First edition 1994

Second edition 1996

Third edition 1999

Fourth edition 2002

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, scanning or otherwise, except under the

terms of the Copyrights Designs and Patents Act 1988 or under the terms of a

licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,

London W1P 9HE, UK, without the prior permission in writing of the publisher.

Dixon, Martin

Principles of land law—4th ed—(Principles of law series)

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

legislation—Wales

I Title

346.4'2'043

ISBN 1 85941 472 9

Printed and bound in Great Britain

To Cornflake

vii

PREFACE

Approaching land law can seem a daunting prospect. One 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 benefits no one. Yet, 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

first unfamiliar. But different does not mean difficult. Similarly, there is a common

belief that land law is boring, not as sexy or apparently relevant 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 can be as challenging

and as relevant as any that any other law course has to offer.

Land law is also a subject based on principle: so Principles of Land Law is

both a convenient and accurate title. The subject is like a jigsaw and this book

aims to explain the principles and how they fit 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. There

has been much important case law in recent years and important legislation

reforming some of the core concepts in land law is now in place. The Land

Registration Act 2002 received Royal Assent on 26 February 2002 and although

it is not yet in force (that being a gradual process over the next five years), the

Act changes the way we think and analyse modern land law. As it is, the subject

has developed rapidly to meet the challenges of modern society and this has

been reflected in the book.

Necessarily, while the author collects the criticisms that might be cast his

or her way, there are many concerned with a book that deserve a share of

any credit. Cavendish Publishing have been especially forgiving while the

text was in preparation although I plead the Land Registration Act 2002. My

wife has now given up pretending to be interested in land law but still ensures

that I remain as sane as I ever was. My own students continue to be free with

their advice about what they want from a text and I regard them as my most

important audience.

Martin Dixon

Queens’ College, Cambridge

April 2002

ix

CONTENTS

Preface vii

Table of Cases xxv

Table of Statutes xliii

Table of Abbreviations xlix

1 AN INTRODUCTION TO MODERN

LAND LAW 1

1.1 THE NATURE AND SCOPE OF THE LAW OF

REAL PROPERTY 2

1.2 TYPES OF PROPRIETARY RIGHTS 4

1.2.1 Estates in land 4

1.2.2 Interests in land 7

1.3 THE LEGAL OR EQUITABLE QUALITY OF

PROPRIETARY RIGHTS 7

1.3.1 The origins of the distinction between

legal and equitable rights 8

1.3.2 Making the distinction between

legal and equitable rights today 8

1.3.3 Section 1 of the Law of Property Act 1925: is the

right capable of being either legal or equitable? 9

1.3.4 The manner of creation of the right 9

1.3.5 The division of ownership and the ‘trust’ 12

1.4 THE CONSEQUENCES OF THE LEGAL/EQUITABLE

DISTINCTION 13

1.4.1 Legal status before the 1925 legislation 13

1.4.2 Equitable status before the 1925 legislation 13

1.5 THE 1925 PROPERTY LEGISLATION14

1.5.1 The Law of Property Act 1925 15

1.5.2 The Settled Land Act 1925 15

1.5.3 The Land Registration Act 1925 15

1.5.4 The Land Charges Act 1972 16

Contents

x

1.6 THE DISTINCTION BETWEEN REGISTERED

AND UNREGISTERED LAND 16

1.6.1 Registered land 16

1.6.2 Unregistered land 17

1.7 A DIAGRAMMATIC REPRESENTATION

OF THE 1925 PROPERTY LEGISLATION19

SUMMARY OF CHAPTER 1 21

2 REGISTERED LAND 25

2.1 INTRODUCTION 25

2.2 THE NATURE AND PURPOSE OF THE SYSTEM

OF REGISTERED LAND 27

2.2.1 Under the Land Registration Act 2002 29

2.3 THE SO CALLED ‘THREE PRINCIPLES’ OF

REGISTERED LAND 30

2.3.1 The mirror principle 30

2.3.2 The curtain principle 31

2.3.3 The insurance principle 32

2.4 AN OVERVIEW OF THE REGISTERED LAND SYSTEM

UNDER THE LAND REGISTRATION ACT 1925 33

2.4.1 Registrable interests (including titles) under the Land

Registration Act 1925 34

2.4.2 Registered charges 35

2.4.3 Overriding interests 36

2.4.4 Minor interests 37

2.5 THE OPERATION OF REGISTERED LAND: TITLES 38

2.5.1 Absolute title 39

2.5.2 Good leasehold title 40

2.5.3 Possessory title 40

2.5.4 Qualified title 41

2.5.5 The new owner or mortgagee (the purchaser) 41

2.5.6 The third party 41

Contents

xi

2.6 THE OPERATION OF REGISTERED LAND:

OVERRIDING INTERESTS 43

2.6.1 Easements and profits: s 70(1)(a)

of the Land Registration Act 1925 44

2.6.2 Rights in the nature of public or residual feudal

obligations: s 70(1)(b), (c), (d), (e) of the Land

Registration Act 1925 46

2.6.3 Adverse possession: s 70(1)(f) of the Land

Registration Act 1925 46

2.6.4 Rights and actual occupation: s 70(1)(g) of the Land

Registration Act 1925 47

2.6.5 Legal leases for 21 years or less: s 70(1)(k) of the

Land Registration Act 1925 52

2.6.6 Further overriding interests under s 70(1) of the Land

Registration Act 1925 52

2.6.7 The bindingness of overriding interests under the

Land Registration Act 1925 53

2.7 THE OPERATION OF REGISTERED LAND:

MINOR INTERESTS UNDER THE LAND

REGISTRATION ACT 1925 60

2.7.1 Restriction: s 58 of

the Land Registration Act 1925 61

2.7.2 Inhibition: s 57 of

the Land Registration Act 1925 61

2.7.3 Notice: s 49 of

the Land Registration Act 1925 62

2.7.4 Caution: ss 54, 55, 56 of

the Land Registration Act 1925 62

2.7.5 Enforcing minor interests 63

2.8 THE OPERATION OF REGISTERED LAND:

OVERREACHING 68

2.8.1 The right must be capable of being overreached 69

2.8.2 The statutory conditions for overreaching

must be fulfilled 69

2.8.3 The consequences of failing to overreach 71

2.9 RECTIFICATION OF THE REGISTER 72

Contents

xii

2.10 INDEMNITY UNDER THE LAND REGISTRATION

ACT 1925 75

2.11 AN OVERVIEW OF THE LAND REGISTRATION

ACT 2002 78

SUMMARY OF CHAPTER 2 81

3 UNREGISTERED LAND 85

3.1 INTRODUCTION TO THE SYSTEM OF UNREGISTERED

CONVEYANCING: UNREGISTERED LAND 86

3.1.1 What is unregistered land? 86

3.2 AN OVERVIEW OF UNREGISTERED LAND 86

3.2.1 Estates in unregistered land 86

3.2.2 Interests in unregistered land: rights over

another person’s estate 87

3.2.3 Legal rights 87

3.2.4 Equitable rights which are registrable

under the Land Charges Act 1972 88

3.2.5 Equitable rights which are not registrable under

the Land Charges Act 1972 because they

are subject to overreaching 88

3.2.6 Equitable rights which are neither overreachable

nor registrable under the Land Charges Act 1972 88

3.3 TITLES IN UNREGISTERED LAND 89

3.4 THIRD PARTY RIGHTS IN UNREGISTERED LAND 90

3.5 THE PURCHASER OF UNREGISTERED LAND

AND THE PROTECTION OF LEGAL RIGHTS 92

3.6 THE PURCHASER OF UNREGISTERED LAND

AND THE PROTECTION OF EQUITABLE RIGHTS:

THE LAND CHARGES ACT 1972 93

3.6.1 The classes of registrable charge under

the Land Charges Act 1972 95

3.6.2 The effect of registering a land charge 98

3.6.3 The consequences of failing to register

a registrable land charge in general 100

Contents

xiii

3.6.4 The voidness rule 101

3.6.5 Other registers 103

3.7 OVERREACHABLE RIGHTS 104

3.8 A RESIDUAL CLASS OF EQUITABLE INTERESTS 106

3.9 INHERENT PROBLEMS IN THE SYSTEM

OF UNREGISTERED LAND 108

3.10 A COMPARISON WITH REGISTERED LAND 109

SUMMARY OF CHAPTER 3 111

4 CO-OWNERSHIP 115

4.1 THE NATURE AND TYPES OF CONCURRENT

CO-OWNERSHIP 116

4.2 JOINT TENANCY 116

4.2.1 The right of survivorship (the ius accrescendi) 117

4.2.2 The four unities 117

4.3 TENANCY IN COMMON 118

4.4 THE EFFECT OF THE LAW OF PROPERTY ACT 1925

AND THE TRUSTS OF LAND AND APPOINTMENT

OF TRUSTEES ACT 1996 119

4.4.1 Before 1 January 1926 120

4.4.2 On or after 1 January 1926 120

4.5 THE DISTINCTION BETWEEN JOINT TENANCY

AND TENANCY IN COMMON IN PRACTICE:

THE EQUITABLE INTEREST 122

4.6 THE STATUTORY MACHINERY AND

THE OPERATION OF CO-OWNERSHIP 123

4.7 THE NATURE OF THE UNSEVERABLE LEGAL JOINT

TENANCY: THE TRUST OF LAND 124

4.8 THE ADVANTAGES OF THE 1925 AND 1996

LEGISLATIVE REFORMS 127

4.9 THE DISADVANTAGES OF THE TRUST OF LAND AS A

DEVICE FOR REGULATING CO-OWNERSHIP 129

4.9.1 Disputes as to sale 129

Contents

xiv

4.9.2 When is it likely that a court will order sale? 131

4.9.3 The special case of bankruptcy 132

4.9.4 The position of a purchaser who buys

co-owned land: when overreaching occurs 134

4.9.5 If consents are required 135

4.9.6 If consents are not initially required 137

4.9.7 When overreaching does not occur 137

4.9.8 The position of the equitable owners:

problems and proposals 139

4.9.9 The position of the equitable owners faced with

overreaching: the problem in perspective 141

4.9.10 The question of possession 142

4.9.11 The payment of rent 143

4.9.12 A summary of the Trusts of Land and

Appointment of Trustees Act 1996 143

4.10 THE EXPRESS AND IMPLIED CREATION OF

CO-OWNERSHIP IN PRACTICE: EXPRESS,

RESULTING AND CONSTRUCTIVE TRUSTS 144

4.10.1 Express creation 144

4.10.2 Creation of co-ownership even though

the legal title is in one name only 146

4.10.3 Establishing the equitable interest 146

4.10.4 The express trust 147

4.10.5 The immediate, the deferred and the indirect

‘purchase money’ resulting trust 147

4.10.6 The constructive trust 149

4.10.7 Where there is no interest 151

4.10.8 The nature of the interest established: joint

tenancy or tenancy in common 153

4.11 SEVERANCE 153

4.11.1 By statutory notice: s 36(2) of

the Law of Property Act 1925 154

4.11.2 By an act operating on his own share 155

4.11.3 Where joint tenants agree to sever by

‘mutual agreement’ 155

4.11.4 By mutual conduct 156

SUMMARY OF CHAPTER 4 157