LAND TENURE

1
LAND TENURE

• 2007

2
LAND

• Land Ownership
• Land Tenure
• Land Sales

3
Land definition

• Mitchell v Mosley 1914
• "the grant of land includes the surface and all
  that is above - houses, trees, and the like - ...
  and all that is below, i.e. mines, earth, clay,
  etc.".

4
Land definition

• Land and Property Act 1925
• Subject to certain exceptions land includes the
  sub-soil down to the depths of the earth and the
  airspace above the land to a reasonable height

5
Land Ownership

• Fructus naturales
• growing naturally (part of the land)
• Fructus industriales
• growing as a result of industry i.e. sown crops
  (not part of the land)

6
Property
7
Land Ownership
Classification of estates
8
Other freehold estates

• Fee tail
• Inheritance by heirs of land which cannot be
  sold, willed or alienated in any way other than
  to the inheritors (abolished by statute in 1925).
• Pur autre vie
• Ownership of land for the duration of an other
  person's life
• Estate for life
• Ownership of land for the duration of your own
  life

9
Fee simple ownership

• The natural right of support for land
• The right of alienation
• Sell as you please
• The right of enjoyment
• Use as you please

10
Fee simple ownership

• Represents absolute ownership but limited by 4
  basic government (Crown) powers
• Taxation
• Eminent domain (compulsory purchase)
• Police power
• Escheat (transfer of title to the Crown if person
  dies intestate)

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Limits of fee simple ownership

• Limits of the land
• boundary
• Rights of others over land
• Easements
• Mortgages
• Statutory restrictions
• Treasure
• Treasure Act 1996
• Minerals

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Limits of fee simple ownership

• Wild animals
• Liability in Tort
• Fishing rights
• Water rights
• River beds
• Chattels found on land

13
Treasure Act 1996

• .An Act to abolish treasure trove and to make
  fresh provision in relation to treasure.
• The Treasure (Designation) Order 2002
• Coroner informed within 14 days
• Treasure has firstly to be offered to a museum
  for purchase
• Non treasure can be sold

14
Liability in Tort

• Tort is a civil wrong independent of contract
• A Tort is not a crime
• crimes result in punishment
• a tort results in the righting of a wrong
• A Tort is not a contract
• a contract is an agreement between two
  individuals
• Torts are duties fixed by law

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Liability in Tort

• a wrong against the person e.g. assault
• wrongs to reputation e.g. defamation
• wrongs to property e.g. trespass
• wrongs to persons or property e.g. nuisance
• wrongs of interference in contractual relations
  e.g. inducing a breach of contract
• abuse of legal procedure e.g. malicious
  prosecutions.

16
Easements

• An easement is the right to use, or to restrict
  the use of, the land of another person in some
  way
• rights of way, rights of light, rights to
  abstract water and rights to the support of
  buildings.

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Easements

• dominant and servient tenement
• relate to property
• If two pieces of land come under the same
  ownership then the easement ceases to exist

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Easementsright of way
HOUSE
A
B
DOMINANT TENEMENT
SERVIENT TENEMENT
19
Easementright of support
20
Mortgages

• the borrower (morgagor) obtains a loan from
  another person (a mortgagee) on the security of a
  property
• deeds relating to the land are transferred
  whilst loan is repaid
• mortgagee has the right to reposess on repayment
  default

21
Land Tenure

• Conditions or period of holding land

22
Land Tenure

• Owner-occupation
• Landlord- Tenant
• Farm Business Tenancy
• Agricultural Holdings Act 1986
• Partnerships
• Share Farming (Joint Venture)
• Short term letting and licences

23
Land Tenure
24
Owner Occupation

• owner of the land occupies land
• increase in owner occupation
• decline in tenanted estates
• capital taxation
• legislation restricting the rights of the owner
  over the tenant (various Agricultural Holdings
  Acts).

25
Owner Occupation

• Advantages
• Freedom to use land as you please
• Disadvantages
• Large quantities of capital tied up
• Total responsibility for land and buildings

26
Landlord-Tenant

• Landlord (owner of land)
• land
• farmhouse
• buildings
• roads
• all other items of infrastructure
• supplied in exchange for an annual cash sum

27
Landlord - Tenant

• Tenant
• livestock
• machinery
• working capital.

28
Legislation

• Agricultural Holdings Act 1986
• agricultural tenancies had full security of
  tenure
• indefinite period from year to year until
  terminated by a 12 mths notice to quit or on on
  the death of the tenant
• Agricultural Tenancies Act 1995
• Farm Business Tenancy
• less interference by law

29
Farm Business Tenancy

• Agricultural Tenancies Act 1995
• Applies to all farm business tenancies, both
  written and oral, beginning on or after 1
  September 1995
• The principle of freedom of contract

30
Farm Business Tenancy

• Reasons for legislation
• encourage landowners to let land (only 35 of
  agricultural land is tenanted)
• to allow tenants to diversify into other
  businesses whilst remaining agricultural tenants

31
Farm Business Tenancy

• Reasons for legislation
• to enable effective enforcement of environmental
  and conservation covenants
• to abolish the recourse to unsatisfactory short
  term arrangements which were being used to avoid
  the security provisions of the Agricultural
  Holdings Act 1986

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Farm Business Tenancyexclusion (1)

• Existing tenancies protected under the
  Agricultural Holdings 1986 Act
• Succession tenancies where two successions have
  not taken place

33
Farm Business Tenancyexclusion (2)

• Variations in an Agricultural Holdings 1986 Act
  tenancy between the same landlord and tenant.
• Tenancies predating 1 September 1995 cannot be
  converted to a Farm Business Tenancy.

34
Farm Business Tenancyexclusion (3)

• Tenancies agreed in contract before 1 September
  1995 but commencing after that date fall under
  the provisions of the Agricultural Holdings 1986
  Act.
• Otherwise from 1 September 1995 all new tenancies
  will be assumed to be under the terms of the 1995
  Act.

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Farm Business Tenancystatutory intervention

• 6 areas only
• definition of farm business tenancy
• notice required to terminate a tenancy
• tenant's right to remove fixtures
• rent review
• compensation
• resolution of disputes

36
Farm Business Tenancy

• business and agricultural conditions
• part of the land must be farmed for the purposes
  of trade or business
• agriculture condition requires that the tenancy
  must be primarily or wholly agricultural
• business conditions allow diversification away
  from agriculture

37
Farm Business Tenancy

• Fixed term tenancies of 2 years or less
  automatically expire on the term date
• Notice of at least 12 months but less than 24
  months is required terminate a tenancy of over 2
  years

38
Farm Business Tenancy

• Tenant can seek compensation for improvements
  made during the tenancy
• Opt out of rent reviews
• Rent can be varied in relation to objective
  criteria

39
Agricultural Holdings Act 1986

• There must be a contract of tenancy to let land
  for use as agricultural land
• The land must be used for trade or business
• The letting to the tenant must not be "during his
  continuance in any office, appointment or
  employment held under the landlord"

40
Definition of Agriculture

• "including horticulture, fruit growing, seed
  growing, dairy farming and livestock breeding and
  keeping, the use of land as grazing land, meadow
  land, osier land, market gardens and nursery
  grounds, and the use of land for woodlands where
  that use is ancillary to the farming of land for
  other agricultural purposes"

41
Horses and the Agricultural Holdings Act

• Grazing non-agricultural animals e.g.. riding
  horses, by way of business is using land for
  agricultural purposes
• Grazing only - no shelter - non agricultural
  business

42
Tenancy agreement

• The relationship in terms of rights and
  obligations between landlord and tenant is
  governed by the tenancy agreement.
• No compulsion for FBT to have a written tenancy
  agreement.
• It is in the best interest of Landlord and Tenant
  to have a written agreement.

43
Tenancy agreement

• Some provisions in the 1995 Act apply
  automatically unless parties agree in writing to
  exclude or modify
• rent
• disputes procedure

44
Tenancy agreement

• Names of the parties involved.
• Particulars of the holding
• map
• area
• Duration of tenancy
• Rent payable including timing.
• Rates payable by landlord and tenant including
  drainage rates.

45
Tenancy agreement

• Covenants by the tenant
• manurial value
• insure all deadstock and harvested crops against
  damage by fire
• not to sub-let without permission
• conservation
• anything else
• Power for the landlord to re-enter onto the
  holding in the case of a breach by the tenant.

46
Security of tenure

• Significant under the 1986 Act
• Minimal under the 1995 Act
• Security of tenure for 2 successions in tenancies
  created before July 12, 1984
• Eviction very difficult
• General Notice to Quit
• Uncontestable Notice to Quit

47
Eligible successors to a tenancy under the 1986
Act

• Within qualifying degrees of kindred to deceased
  tenant i.e. wife, brother, sister, child or
  treated child.
• Deriving a living from the holding.
• Occupiers of a commercial unit of agricultural
  land not eligible.
• No succession to more than one commercial unit.

48
Landlord-Tenant

• ADVANTAGES
• Enables landlords with no farming skills to
  utilize land for agricultural purposes.
• Gives opportunity for persons with limited
  capital to enter farming without having to
  purchase land.
• Enables landlords with insufficient capital to
  utilize land for agricultural purposes.

49
Landlord-Tenant

• ADVANTAGES
• Tenancy agreement can specify a minimum standard
  of farming.

50
Landlord-Tenant

• DISADVANTAGES
• Landlord has poor land owning skills.
• Landlord wealth may not be sufficient to maintain
  buildings etc..
• Capital planning is limited.
• Tenants have considerable security under 1986 Act
  conditions but much less under the 1995 Act.

51
Partnerships

• Landlord retains vacant possession
• The return on capital from owning land is low
  compared to the return on farming the land. A
  partnership enables a landlord to feel the
  benefit of both.
• Retains a proportion of control over use of land.

52
Partnership

• Applies for a limited period and can therefore be
  terminated at relatively short notice.
• Enables landowner to farm land when capital
  and/or income may be limiting for landlord-tenant
  relationship.

53
Partnershipbenefits to farming partner

• Farming partner has opportunity to have a stake
  in an agricultural business.
• Amount of capital required is less than in an
  owner occupied situation.

54
Partnership agreement

• Name, place of business, bankers and cheque
  signing rights.
• Capital provided, shares of partners and
  provision for ploughing profits back into the
  business.
• Salary levels.
• Expenses rights.
• Profit sharing.

55
Partnership agreement

• Dealing restraints, bounds of purchasing/selling
  rights.
• How to dissolve the partnership notice and
  circumstances e.g. bankruptcy or incapacity.
• Provision due to death of one or other of the
  partners. Termination will take place if no
  provision is made.

56
Partnership agreement

• Partners working time to ensure that one is not a
  sleeping partner.
• Partnership property.
• Insurance, especially important due to joint
  liability.
• Accounts, where they are to be kept, by whom, and
  who is responsible for drawing up the accounts.
• Arbitrator for disputes.

57
Share Farming or Equine Joint Venture

• Joint venture between two separate businesses.
• It is deliberately designed to avoid the creation
  of partnership or tenancy
• Short term 1-5 yrs

58
Share Farming or Equine Joint Venture

• OCCUPIER supplies
• land
• buildings
• fixed equipment
• share of livestock
• SHARE FARMER supplies
• labour
• working machinery
• share of livestock

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Share farming - OCCUPIER

• he does not want to participate in the day to day
  management a business
• he wishes to give someone an opportunity to start
  a business
• he wants to retain vacant possession of the land
  and share the risk of farming/equine

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Share Farming - SHARE FARMER

• opportunity to get started in farming/equine
• opportunity for an established business to expand
  and spread the fixed costs of labour and machinery

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Share farming/equine joint venture

• The Share farmer and Occupier derive their
  respective incomes by sharing farm output
• The PROPORTION is determined by the value of each
  party's contribution of FIXED COSTS.
• Detailed budgets can then be drawn up using the
  proportions

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Share farming example

• Area
• 75 ha
• Stocking
• 90 Dairy cows
• 200 Mule ewes
• 12 ha barley
• Share farmer has 6000 interest to pay

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Share farming example
64
Short term letting and leases

• Grazing Licences
• A licence is a permission to perform an act which
  would otherwise be unlawful in regard to the land
  of another person.
• A Grazing Agreement can contain specifications
  which limit the use of land
• Type of Stock
• Stocking rate
• Fertiliser use
• Mowing dates

65
Buying and selling land

• The transfer of land from the possession of one
  to another is called a CONVEYANCE.
• This normally requires the services of a
  solicitor for both Vendor and Purchaser.

66
Root of title

• The disposition of land
• dealing with the whole of the legal and equitable
  estate
• adequate description of the property and
  revealing no defect in title.
• A "good root title" must show title for at least
  15 years.
• The vendor has to provide at his own expense an
  abstract of his title.

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Particulars of sale

• The particulars describe the property sold.
• They must include
• (i) the physical extent of the property
• (ii) the estate or interest in the land
• (iii) the benefit of the rights attaching to the
  land
• (iv) any burdens to which the land is subject.

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Caveat Emptor

• Caveat Emptor "buyer beware"
• Applies to all land sales.
• Purchaser should make his own searches and
  inquiries and employ a surveyor to inspect the
  property.
• Vendors must not make misrepresentations on the
  nature of the property.
• Particulars must not mislead and provide a
  favourable perspective of the property.

69
Conditions of sale

• Conditions of sale describe the terms under which
  the property is sold.
• Standard forms are available to cover most
  transactions.
• Conditions may be varied to take into account any
  special circumstances.

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Land Registration

• Registration of the title and not the land itself
• Compulsory on all land sold since 1990
• Inherited, gifted land does not require
  registration
• Land Certificate confirms details held at Land
  Registry

71
Land Registration

• Open register
• Searches of land register are possible to
  determine land ownership
• Incomplete register

72
Land Charges

• Rights and actions over land are registerable
  with Land Registry
• Land Charges Act 1972

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Land Charges

• Six classes exist
• CLASS A
• financial payments due on application and
  enforced by statute e.g. drainage charges
• CLASS B
• Charges imposed automatically by statute

74
Land Charges

• CLASS C
• Puisine mortgages (not protected by security
  often a second mortgage)
• Limited owners charges (discharges of death
  duties)
• Estate contracts (contract, an option to
  purchase, a right of pre-emption, a right to
  determine, surrender or renew a lease)
• General equitable charges (informal mortgages)

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Land Charges

• CLASS D
• Death duties
• Capital transfer tax/inheritance tax
• Restrictive covenants
• Equitable easements
• CLASS E
• easements created before 1 Jan 1926
• CLASS F
• charges arising from marriages

76
Local Land Charges

• Obligations ('charges) enforceable against
  successive owners by local authorities, or
  central government
• Local Land Charges Act 1975
• Held by District/Unitary Councils
• Building Preservation Notice
• Light Obstruction Notice
• New Road Developments
• Sewer Drainage
• Slum Clearance
• Compulsory Purchase

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Local Land Charges

• General financial charges
• Specific financial charges
• Planning charges
• Other charges
• Fenland ways maintenance charges
• Land compensation charges

• New Towns charges
• Civil aviation charges
• Open cast coal charges
• Listed building charges
• Light obstruction notices
• Drainage scheme charges

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Sale by public auction
VENDOR
AUCTIONEER
BUYER
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The requirement of writing

• Law of Property (Miscellaneous Provisions) Act
  1989
• Contracts for the sale or disposition of land
  must be in writing and incorporate all the
  conditions of sale

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The requirement of writing

• An agreement for sale
• A description of the parties
• A description of the property
• A statement of the price
• It must be signed by the person to be charged or
  his agent

81
The requirement of writing

• There are exceptions-
• Contracts made in the course of a public auction
• Contracts to grant a lease not exceeding 3 yrs
  taking effect in possession at the best rent
  reasonably available
• Contracts regulated under the Financial Services
  Act 1986

82
Common land

• Land owned by one person where others hold rights
  of common over the land
• Halsburys The Laws of England - definition in
  Cookes Inclosure Acts (4th Edn)
• A right, which one or more persons may have, to
  take or use some portion of that which another
  mans soil naturally produces.
• Commons Bill currently in Parliament

83
Common land

• common of pasture
• right to graze cattle, sheep, horses or other
  animals
• common of turbary
• right to dig turves and peat
• common of estovers
• right to cut timber for fuel or building repair
• common of pannage
• right to turn out pigs to eat acorns and beech
  mast

84
Common land

• common of piscary
• right to fish
• common in the soil
• right to take gravel, sand, stone and other
  minerals.