10. Freehold Covenants

This chapter examines the proprietary effect of covenants relating to freehold land as agreements that can be enforced against subsequent owners of the servient land by subsequent owners of the dominant land. It first considers the terminology and structure used to create freehold covenants relating to land before discussing the enforceability of the burden of freehold covenants to define who can sue for breach of covenant. It then looks at indirect enforcement of positive obligations and explains how freehold covenants relate to the acquisition and defences questions. It also analyses the entitlement to the benefit of freehold covenants to define who can sue for breach of covenant, the common remedies for breach of a freehold covenant, and the statutory jurisdiction to alter outdated covenants. Finally, it evaluates a number of proposals to reform the law governing land covenants.

6. Trusts of Land

This chapter examines the legal regulation of trusts of land, with a particular focus on co-ownership trusts. It begins with a discussion of the two forms of co-ownership that exist in English law, joint tenancy and tenancy in common, as well as the ‘severance’ rules that enable a joint tenant to become a tenant in common. While joint tenants can act only collectively and their acts necessarily affect the whole of the co-owned estate, tenants in common can also act individually in relation to their own undivided shares in the estate. The chapter goes on to consider the trustees' powers, beneficiaries' rights, and the role of the court in relation to co-ownership trusts as provided by the Trusts of Land and Appointment of Trustees Act 1996. Finally, it explains how the courts resolve disputes between co-owners and disputes between co-owners and creditors as to whether co-owned land should be sold.

9. Easements

This chapter examines easements and how they relate to the content, acquisition and defences questions. Easement refers to the right of a landowner to enjoy a limited use of neighbouring land. An essential feature of an easement is the need for two pieces of land: the dominant land to which the benefit of the easement is attached and the servient land over which the easement is exercised. This chapter considers the four defining characteristics of an easement: there must be two distinct areas of land — dominant land and servient land; the dominant and servient land must be owned by different people; the easement must ‘accommodate’ the dominant land; and the right must be capable of forming the subject matter of a grant. It also discusses, in relation to the acquisition question, the express and implied creation of an easement, as well as the involuntary acquisition of an easement through prescription. It concludes by considering with the defences that can defeat an easement.

12. Concepts and Contexts

This chapter explores some of the wider issues raised by the rules applying to private rights to use land, along with the nature of the challenges faced by judges and Parliament when deciding how best to develop those rules. It begins by discussing the importance of concepts and contexts in land law, as well as the tension between concepts and contexts and the effect of different judicial approaches to land law. It then considers the relative merits of judicial and legislative reform of land law and goes on to examine the impact of statutory reform, particularly of registration statutes, in land law. It also assesses the impact of human rights and regulation on land law, citing the Supreme Court ruling in Scott v Southern Pacific Mortgages Ltd (2015), before concluding with an analysis of the role of non-doctrinal approaches in evaluating land law.

4. Registered Title and the Acquisition of Legal Estates

This chapter examines both the acquisition question and the content question in relation to legal estates within the context of the Land Registration Act 2002. More specifically, it considers how legal estates in land are created and transferred. It also explores the principles that lie behind the registration of title as well as the content of a registered title. After describing the formal acquisition of legal estates, the chapter focuses on the content of a registered title. It then analyses the extent to which a registered title is indefeasible in the light of case law on the effect of fraudulent transactions. It also explains how legal estates can be acquired informally through adverse possession and concludes with a discussion of the human rights aspect of adverse possession.

3. Personal Rights and Property Rights

This chapter examines property rights in land and personal rights that may allow a party to make a particular use of land. It first considers the distinction between personal rights and property rights before addressing the content question: whether the type of right claimed by a party counts as a property right. To answer that question, a distinction is made between different types of property right. The most important distinction is between legal property rights, on the one hand, and equitable property rights, on the other. The chapter also discusses licences to use land and contrasts their operation and effect with those of property rights in land. It highlights the nature of licences and the controversy over contractual and estoppel licences and concludes with an analysis of the relationship between the law of leases and of licence.

2. Human Rights

This chapter explores the impact of human rights upon property rights and relations, with particular emphasis on Article 1 Protocol 1 and Article 8 of the European Convention on Human Rights which has been incorporated into English domestic law by the Human Rights Act 1998. It first provides a background on the particular jurisprudence of human rights reasoning before discussing the import of Article 1 Protocol 1, in protecting possessions, and Article 8, in requiring respect for the home. The focus is on home repossession (Article 8), protection against discrimination (Article 14), and right to a fair trial (Article 6). It also considers adjudication under the Human Rights Act 1998, along with the justification formula developed by the Strasbourg Court and how it operates in the context of the particular human rights that relate to land. Finally, it examines the so-called vertical effect and horizontal effect.

11. The Defences Question

This chapter examines land law's priority rules, conceptualized as the defences question. Priority rules refer to a set of rules that determine the circumstances in which a property right held by one party (B) against another party's title (A) can be enforced when A transfers the title to a third party (C) or grants a mortgage over the title to C as security for a loan. The chapter considers the circumstances in which C has a defence against B's claim to priority, focusing on priority rules that apply in registered land. It also discusses the specific rules provided in the Land Registration Act 2002 for registered dispositions of registered estates for valuable consideration and two defences that operate outside the provisions of the Act; the defence of consent and overreaching.

8. Mortgages and Security Interests in Land

This chapter examines the law governing security interests that can exist in land, with particular emphasis on the legal charge by way of mortgage in the social setting of home ownership. It first considers the four different types of security interest that can exist in land — the pledge, the lien, the mortgage, and the equitable charge — before discussing the equity of redemption and its significance into the realm of the legal charge by way of mortgage. It then explains the rights and powers of the lender on the enforcement of the security and the ways in which the law seeks to protect the borrower as the more vulnerable party during the course of the mortgage transaction. It also explores the principle of procedural fairness in transactions involving surety mortgages, focusing on the concept of undue influence, and concludes with an analysis of regulatory control of mortgage terms.

7. Leases

This chapter deals with leases and how they relate to the content, acquisition, and defences questions. It first considers the distinction between a lease and a licence, noting that such a distinction reflects the most fundamental distinction in land law: between a property right and a personal right. It then tackles the content question by focusing on the concept of exclusive possession, the requirement that a lease must have a certain term, the nature of a ‘Bruton lease’, the question of rent, and the intention to create legal relations. It also examines the acquisition question by explaining how leases may be created or transferred, and the defences question by distinguishing between legal leases and equitable leases. Finally, it discusses the nature and operation of leasehold covenants and consequent forfeiture if a leasehold covenant is breach. Finally it explains the use of leases in the ownership of flats.