English Land Law

1
English Land Law
Ref, AJ legal handbook, 6th edition Anthony
Speaight and Gregory Stone
2
The Squire painted with his assets, wife and
land, Robert Andrews, by Gainsborough (1748-9)
3
Mondrian, Composition number 331, fields with
distinctive boundaries.
Mondrian, Broardway Boogie Woogie, Public domains
between the fields.
4
English Land Law
Land Law is concerned with rights in or over land
which a landowner has and those which others have
over his land. Many of the concepts and terms
used in land law have unusual terminology's due
to the ancient nature of English Land law.
English Land law was greatly revised through
statutes in 1925 these now form the basis of
modern Land Law Titles to land are either
registered or unregistered unregistered land will
eventually disappear and landholders will be
either freeholders or leaseholders. Proof of
ownership is found in the title deeds to the
property, Freehold properties are
sold. Leasehold properties are assigned Solicitor
s conveyancing properties investigate the deeds
back to the root deed which is back 15 years in
terms of ownership's.
5
Rights over unregistered land are either legal or
equitable The distinction is historical in
origin, though recent statutory intervention
retains the dicotomy more for conveyancing
convenience. Legal estates and rights are
binding on all the world, whether or not the
purchaser of the land knows of them. Most
easements and many mortgages are legal
rights Equitable rights are good against all the
world except a purchaser in good faith who has no
notice of the right. Notice is actual,
constructive or imputed 1 A purchaser has actual
notice of those encumbrances of which he is aware
and of which are called land charges. 2 A
purchaser has constructive notice of those
matters which a reasonable purchaser would be
expected make enquiries about. (a) inspecting the
title deeds back to the root deed. (b) inspecting
the land itself making enquiries of people he
finds on it. 3 A purchaser has imputed notice of
all matters which his solicitor knows or
discovers while acting as agent in that
transaction or should have reasonably discovered.
6
Encumbrances on land may be registered at the
Land Registry as land charges under the Land
Charges Act 1972. The most important ones for
architects are. 1. Estate contracts, I.e
contracts for the sale of land or of any interest
in land, including contracts to grant leases,
options to purchase (I.e standing offer by a
landlord to sell) and rights to pre-emption ( I.e
rights of first refusal. 2. Restrictive covenants
except those in a lease and those entered into
before 1926. 3. Certain types of easement, such
as those not granted by deed or those which only
endure for the life of a person. Registration of
such an encumbrance constitutes actual notice of
it to all persons for all purposes. If the
encumbrance is registrable but not registered it
will be void against a purchaser of the land
whether he knows of it or not. In Unregistered
Land, charges are not registered against the land
but the person who owns the land for the time
being, it is therefore necessary to search
against previous owners of the land. As the
search is usually only 15 years and the charges
have been registered since 1925 it is often
difficult to discover encumbrances, however a
person is still bound by it as its registration
constitutes actual notice, compensation is
however payable for losses suffered if an
encumbrance lies beyond the root, I.e 15 years.
7
With Registered Land the title itself is
registered, details of any encumbrances will also
be registered against the land and not the
owners. If for any reason the Register is not a
true reflection of the title it may be rectified
however compensation for loss may be
applicable. The Register is not a public
document. A purchaser of registered land is
allowed to obtain the vendors permission to
inspect the Register, and also the land as
certain rights termed overriding interests such
as easements, leases, squatters rights, local
land charges and the rights of those in
occupation may not be listed on the
Register. Certain land charges are registered at
a Local Authority level, these local land charges
are innumerable including, Preservation
Instructions as to ancient monuments Lists of
buildings of special architectural or historic
interest Planning restrictions Drainage
schemes Charges under the Public Health and
Highways Acts. Architects are advised to find
out what encumbrances exist on any clients land
primarily from the client, his solicitor and
Local Authorities.
8
Land in English law includes not only soil but
also any buildings or structures and anything
permanently attached to the soil.
9
Rights over the land theoretically extend to the
centre of the earth and up into the sky as
necessary for the enjoyment of the land. Mineral
rights entitlement except for, silver, gold and
petroleum which are vested in the Crown and coal
which is vested in the National Coal
Board. Easements such as rights of way and
profits such as rights to fish Trespass Any
unjustifiable intrusion of an others land is a
trespass, trespass is a tort and there does not
have to be any damage suffered for the tort to be
actionable. A Licence is permission to do
something that would otherwise be unlawful. A
bare licence to enter land is given gratuitously
and can be revoked by the licensor at any
time. A contractual licence is granted for some
consideration whether or not it can be revoked at
any time depends on the contract, some licences
are either expressly or by necessary implication
irrevocable.
10
Boundaries A boundary has been defined as an
imaginary line that marks the confines of a
parcel of land. Boundaries are fixed in one of
three ways 1 By the proved acts of the
respective owners. Parties agree on the
boundaries. The boundaries are in a title deed
which refer to a map. Through showing 12 or more
years undisturbed possession. 2 By statutes or
by orders of the authorities having jurisdiction.
This is now largely historic, but reference maps
such as the tithe acts, Enclosure Acts may be
used to prove a boundary 3 In the absence of
either, by legal presumption.I.e certain
rebuttals apply.
11
Hedges and Ditches. It is presumed that a ditch
is dug wholly on the owners land and that
excavations are heaped onto his own land, on top
of that heap a hedge is usually planted.
Fences. It is presumed that the fence posts are
on the landowners side, this assumption is
however unsupported by authority. Highways. The
boundary between lands separated by a highway is
presumed to be the middle of the highway. With
railways the track base is wholly owned by the
railway. The seashore. The boundary line is
usually the line of the median high tide between
the ordinary spring and neap tide. Rivers and
Streams. If tidal the soil bed of the river or
stream belongs to the Crown or the Duchies of
Cornwall or Lancaster. If a river or stream is
non-tidal the middle of the water course is the
boundary for adjoining landowners. Walls. The
line is usually shown on deeds however this may
not always be the case and there are party walls
of different types. The usual division line is
in the centre of the wall but with each party
having the right of support of the wall.
Variations do occur and party wall boundaries and
procedures is a subject in itself.
12
Easements These are rights which one owner may
obtain over the land of another. They may be
positive or negative in nature for instance a
positive easement enables the dominant party to
carry out an act on a servient owner e.g. a right
of way. A negative easement merely enables the
dominant owner to prevent the servient owner form
doing something on his land I.e right to
light The essentials of an easement are 1 The
existence of dominant and servient tenements 2
Benefit to the dominant tenement whilst the
servient tenement is subjected to the burden. The
plots do not have to be adjacent but must be
sufficiently close such that the dominant
tenement benefits. 3 Tenements must be owned by
different owners 4 The easement claimed must be
capable of forming the subject matter of a grant.
Rights to light, rights of way, rights to
support, are established easements however more
unusual ones are to use a neighbours toilet, to
use and airfield, to use a park path for
pleasure, to use a letter box,
13
Easements may be obtained in one of four ways 1.
By Express grant or reservation, I.e a landowner
may by deed grant an easement, or a landowner
selling part of his land may reserve in his
favour an easement. 2. By implied reservation or
grant. If a landowner sells off part of his land
and fails to reserve an easement the only
easements that will be implied in his favour are
ones of necessity. I.e without which the vendors
retained land cannot be used. 3. Under the
statutory general words of the property act
1925 there will pass on every conveyance all
liberties, privileges, easements, rights and
advantages appertaining to or reputed to
appertain to the land. I.e the easements are
passed on. 4. By prescription I.e long user
without force, secrecy or permission can give
rights to easements. Use must be shown to be
continuous. Through common law where it should
have existed since time immemorial I.e 1189,
though 20 years proved usage is usually accepted.
The doctrine of modern grant, 20 years continued
usage,( I.e too easy to defeat common law). Under
the prescription act 1832 which establishes 20
years use as confirmation and then 40 years use
as absolute indefeasible easement. Extinguishment
of an Easement Apart form an express release by
deed the most important method of extinguishment
is by the two properties coming into the same
ownership.

14
Restrictive Covenants Restrictive covenants
restrict the servient tenement in this use or
enjoyment of the land. A typical example is not
to build above a certain height. The essentials
of a restrictive covenant are 1 That it is in
substance negative 2 That it is made between the
covenantor and the covenantee for the benefit of
the covenantees land. 3 That the parties intend
the burden to run with the covenantors land so
as to bind not only the covenantor but also his
successors. Restrictive covenants require
registration in unregistered land and in
registered land require a notice or caution on
the Register. The usual remedy for an
infringement of a restrictive covenant is an
injunction of restraint, courts may however award
damages. Discharge of a restrictive covenant Many
restrictive covenants formerly imposed are no
longer of real benefit and may be in conflict
with reasonable redevelopment. The Lands Tribunal
has power under the Law of property act 1925
(amended 1969) for the discharge or modification
of the covenant. Compensation may be awarded in
lieu of the covenant.
15
Landlords and Tenant covenants Leases carry
specific terms some of which form covenants such
as repairing covenants. Architects should inquire
of the clients solicitor concerning the specific
terms of the lease. Doctrine of waste (in
relation to Leases.) Waste consists of an act or
omission which causes a lasting alteration to the
land. Voluntary waste is a positive act, such as
demolition of a premises. Permissive waste is an
omission, such as lack of maintenance.
Ameliorating Waste is some change which improves
the value A landlord can obtain an injunction to
prevent all three kinds of waste but can recover
damages only for the first two. Alterations to
premises by tenants must usually seek the
approval of the Landlord whose consent should not
unreasonably be withheld if the alteration is an
improvement? The Landlord can object on
aesthetic, artistic and even sentimental grounds.
16
Repairing covenants These refer to Leasehold
tenancies, a schedule of dilapidation's is
prepared at the start of a leasehold agreement
and at the end of a leasehold agreement, the
premises should be returned in a fit state of
repair at the end of the tenancy, related to the
schedule, at the beginning of the tenancy. It is
the tenants responsibility to prove that a bad
state of repair is within the exemption of fair
wear and tear. This means that the tenant is not
responsible for damage resulting from exposure to
the natural elements or reasonable use. Although
the tenant is not responsible for the repair of
tiles slipping from a roof he would be liable for
damage to the interior from his failure to take
steps to prevent rain entering. Enforcement of
repairing covenants Under the Leasehold Property
( Repairs) Act 1938 as extended by the Landlord
and Tenant Act 1954 the landlord must first
serve the tenant with notice of the breach before
he can begin action for damages. If the tenant
serves a counter notice within 28 days the
landlord cannot take action without the consent
of the court.
17
Architects responsibilities for surveys In
preparing a schedule of dilapidation's it is
important to contact the clients solicitors to
find out the terms of the lease to check which
parts of the building come under the repairing
lease. As it is sometimes difficult to know
whether a fixture or fitting is a landlords of
leaseholders notes should be made on anything
which is questionable. Where the parties of
leaseholder and landlord cannot agree on the
costs of dilapidation's and the case goes to
court the schedule of dilapidation's will become
evidence, consequently it is important that it is
clearly drawn. A party prejudiced by an
incorrect schedule will sue the architect or
surveyor in negligence rather than have the
schedule set aside. If defects are unobserved
the architect may be held negligent. It is
important to note the extent of the investigation
into the property in terms of the uncovering of
defects.
18
Business tenancies An architect should check if
a lease offered includes an absolute right of
forfeiture in the event of bankruptcy, as finance
cannot be raised from a bank or building society
on the security of such a lease. Check the
wording of covenants empowering assignment or
subletting, of the immediate lease documents and
any superior lease where the landlord may have
the right to refuse. I.e the immediate landlord
may consent and the superior landlord
refuse. The Landlord and Tenant Act 1954
provides protection to occupiers of business
premises. The Landlord must serve notice of not
less than 6 months and not more than 12 months,
expiring not earlier than the existing tenancy.
The tenant can object to the notice saying that
he is unwilling to leave within two months of
being served with the notice and apply to the
court for a new tenancy.
19
There are seven reasons why a new business
tenancy may not be granted 1. If the landlord
intends to demolish the premises at the end of
the tenancy and cannot do so unless he is in
possession of the whole. (since the 1969 Act this
does not prevent a new tenancy unless the
landlord cannot carry out such works without
seriously interfering with the tenants business)
2. If the landlord proves that he is intending
to occupy the premises for his own business, (or
in one that he has a controlling interest) or as
a residence. 3. If the landlord proves that the
premises are part of a larger whole from which he
could obtain a substantially larger rent. 4. If
the tenant fails to keep the premises in good
repair. 5. If there are persistent delays in
paying rent 6. If there are breaches of
covenant 7. If the landlord is willing to provide
alternative suitable accommodation on reasonable
terms. Compensation is payable in all but the
first three examples above.