Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0006
E. Lees
This chapter focuses on adverse possession, which is the obtention of title to land by means of possession without permission. It is the natural and logical consequence of the combination of the principle of relativity of title and of limitation (time limits) on actions. The chapter then analyses the rules relating to adverse possession, considering both unregistered land and registered land. Adverse possession is one of the few areas where the unregistered land rules are still regularly taught. The chapter also looks at the special situation which emerges when the rules on adverse possession interact with leases. Moreover, it examines the relationship between the adverse possession rules and criminal law. Finally, the chapter explores the justifications or explanations behind adverse possession, including the relationship between these rules and human rights.
{"title":"6. Adverse Possession","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0006","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0006","url":null,"abstract":"This chapter focuses on adverse possession, which is the obtention of title to land by means of possession without permission. It is the natural and logical consequence of the combination of the principle of relativity of title and of limitation (time limits) on actions. The chapter then analyses the rules relating to adverse possession, considering both unregistered land and registered land. Adverse possession is one of the few areas where the unregistered land rules are still regularly taught. The chapter also looks at the special situation which emerges when the rules on adverse possession interact with leases. Moreover, it examines the relationship between the adverse possession rules and criminal law. Finally, the chapter explores the justifications or explanations behind adverse possession, including the relationship between these rules and human rights.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115470609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0016
E. Lees
This chapter studies the trust of land, and how this legal structure is used to manage co-ownership of land. It first describes the nature of interests under a trust of land, and the rights and obligations for trustees and beneficiaries which arise as a result of the creation of such a trust. The chapter then details the different forms of concurrent co-ownership which can exist in relation to land, looking at joint tenancies and tenancy in common as well as the process of severance. Since co-ownership cannot exist without a trust, it is useful to have understood trusts generally before examining it as a tool to manage co-ownership situations. Finally, the chapter assesses the regulation of disputes between trustees, beneficiaries, and third parties. Partly these disputes relate to questions of priority, and so it is useful to read this chapter in conjunction with the previous one concerning the general priority rules.
{"title":"16. Co-Ownership","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0016","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0016","url":null,"abstract":"This chapter studies the trust of land, and how this legal structure is used to manage co-ownership of land. It first describes the nature of interests under a trust of land, and the rights and obligations for trustees and beneficiaries which arise as a result of the creation of such a trust. The chapter then details the different forms of concurrent co-ownership which can exist in relation to land, looking at joint tenancies and tenancy in common as well as the process of severance. Since co-ownership cannot exist without a trust, it is useful to have understood trusts generally before examining it as a tool to manage co-ownership situations. Finally, the chapter assesses the regulation of disputes between trustees, beneficiaries, and third parties. Partly these disputes relate to questions of priority, and so it is useful to read this chapter in conjunction with the previous one concerning the general priority rules.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"132 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124556891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0014
E. Lees
This chapter addresses estate contracts, options to purchase, and rights of pre-emption. ‘Estate contracts’ is a generic term given to contracts relating to the intended transfer of estates in land, i.e. the freehold and leasehold estate. The consequence of an estate contract varies depending upon the kind of interest which it is intended will be created and the precise nature of the agreement reached between the parties. This can lead to some conceptual difficulties. Meanwhile, options to purchase and rights of pre-emption are two kinds of estate contract. Both involve an agreement between a freehold or leasehold proprietor and a potential purchaser in relation to that estate. An option to purchase entitles its holder to demand that the proprietor sell that estate to them, usually within a defined time period, for a pre-determined or determinable price. The right of pre-emption is, in effect, a right of first refusal. It does not allow its holder to force the proprietor of the estate in land to sell, but means that if that person does decide to sell, it must first be offered to the holder of the pre-emption right.
{"title":"14. Estate Contracts, Options to Purchase, and Rights of Pre-Emption","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0014","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0014","url":null,"abstract":"This chapter addresses estate contracts, options to purchase, and rights of pre-emption. ‘Estate contracts’ is a generic term given to contracts relating to the intended transfer of estates in land, i.e. the freehold and leasehold estate. The consequence of an estate contract varies depending upon the kind of interest which it is intended will be created and the precise nature of the agreement reached between the parties. This can lead to some conceptual difficulties. Meanwhile, options to purchase and rights of pre-emption are two kinds of estate contract. Both involve an agreement between a freehold or leasehold proprietor and a potential purchaser in relation to that estate. An option to purchase entitles its holder to demand that the proprietor sell that estate to them, usually within a defined time period, for a pre-determined or determinable price. The right of pre-emption is, in effect, a right of first refusal. It does not allow its holder to force the proprietor of the estate in land to sell, but means that if that person does decide to sell, it must first be offered to the holder of the pre-emption right.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128328939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0008
E. Lees
This chapter addresses proprietary estoppel, which is one of the land law doctrines which allows for the creation of rights in land without a written contract or other formal document. It arises when a person (the promisor) makes a promise to another (the promisee) in relation to their land, and then attempts to go back on that promise in circumstances where it was unfair to do so. Given the general policy of formality, with its associated benefits of certainty and clarity, one must consider the rules relating to proprietary estoppel from the perspective not only of when proprietary estoppel generates rights in land, but also why it does so. This is particularly important in relation to estoppel since it represents a general and potentially broad exception to the formality rules discussed in the fourth chapter. There are three forms of proprietary estoppel: estoppel by representation, estoppel by acquiescence, and estoppel by assurance or promise. The chapter then discusses the consequences of estoppel arising in terms of remedies and effects on third parties. It also examines the relationship between estoppel and formalities, and estoppel and constructive trusts.
{"title":"8. Proprietary Estoppel","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0008","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0008","url":null,"abstract":"This chapter addresses proprietary estoppel, which is one of the land law doctrines which allows for the creation of rights in land without a written contract or other formal document. It arises when a person (the promisor) makes a promise to another (the promisee) in relation to their land, and then attempts to go back on that promise in circumstances where it was unfair to do so. Given the general policy of formality, with its associated benefits of certainty and clarity, one must consider the rules relating to proprietary estoppel from the perspective not only of when proprietary estoppel generates rights in land, but also why it does so. This is particularly important in relation to estoppel since it represents a general and potentially broad exception to the formality rules discussed in the fourth chapter. There are three forms of proprietary estoppel: estoppel by representation, estoppel by acquiescence, and estoppel by assurance or promise. The chapter then discusses the consequences of estoppel arising in terms of remedies and effects on third parties. It also examines the relationship between estoppel and formalities, and estoppel and constructive trusts.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130260964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0007
E. Lees
This chapter assesses the law relating to implied trusts. The law relating to implied trusts is almost entirely a judicial invention, and perhaps even more importantly, the relative vagueness of many of the rules means that a knowledge of how they work in practice from existing case law is essential. The chapter then studies express trusts, statutory trusts, constructive trusts, and resulting trusts. It also considers the plans regarding reform of the law in this area. The reform proposals which exist do not represent a clear improvement, however, and so in this area, it is perhaps best to see the law as it exists as a series of compromises borne out of a combination of political unwillingness to tackle the issues of cohabitation and imbalance in relationships head on, and of the common law's reluctance in respect of, and the constitutional impropriety of, judicially created ‘revolutionary’ rules.
{"title":"7. Implied Trusts","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0007","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0007","url":null,"abstract":"This chapter assesses the law relating to implied trusts. The law relating to implied trusts is almost entirely a judicial invention, and perhaps even more importantly, the relative vagueness of many of the rules means that a knowledge of how they work in practice from existing case law is essential. The chapter then studies express trusts, statutory trusts, constructive trusts, and resulting trusts. It also considers the plans regarding reform of the law in this area. The reform proposals which exist do not represent a clear improvement, however, and so in this area, it is perhaps best to see the law as it exists as a series of compromises borne out of a combination of political unwillingness to tackle the issues of cohabitation and imbalance in relationships head on, and of the common law's reluctance in respect of, and the constitutional impropriety of, judicially created ‘revolutionary’ rules.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"679 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132480530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0010
E. Lees
This chapter discusses the nature, creation, and forms of leases. The leasehold estate is one of the two possible estates in land. The lease is, essentially, consensual exclusive possession of land for a limited duration. The purposes to which leases are put range from very short-term occupation agreements to leases lasting hundreds of years. In order to create a valid lease, the formalities which are required will depend upon the length of the lease which the parties are attempting to create and the type of lease to which they wish to give rise, as well as the nature of the rights which they currently have. There are different forms of leases: periodic tenancies; tenancies at will; and the Bruton tenancy. The chapter then assesses how the relationship between landlord and tenant is managed both during and after the contractual term of the lease. It also looks at one of the most flexible and useful aspect of leases, the ability to sublet, to create concurrent leases, and the nature of the reversionary interest during the currency of the lease.
{"title":"10. Leases","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0010","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0010","url":null,"abstract":"This chapter discusses the nature, creation, and forms of leases. The leasehold estate is one of the two possible estates in land. The lease is, essentially, consensual exclusive possession of land for a limited duration. The purposes to which leases are put range from very short-term occupation agreements to leases lasting hundreds of years. In order to create a valid lease, the formalities which are required will depend upon the length of the lease which the parties are attempting to create and the type of lease to which they wish to give rise, as well as the nature of the rights which they currently have. There are different forms of leases: periodic tenancies; tenancies at will; and the Bruton tenancy. The chapter then assesses how the relationship between landlord and tenant is managed both during and after the contractual term of the lease. It also looks at one of the most flexible and useful aspect of leases, the ability to sublet, to create concurrent leases, and the nature of the reversionary interest during the currency of the lease.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123024174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0004
E. Lees
This chapter examines the formality rules in relation to transactions involving land, which are essential to the operation of the land law system in practice. Formality rules play an important role in protecting vulnerable individuals; in ensuring caution; and in preserving the essence of an agreement should any future disputes arise. The chapter then details the formalities required to create an enforceable contract in land; a deed; and a valid disposition of an equitable interest. It also explains that there are different formality rules relating to a declaration of trust and to the transfer of interests arising under a trust. A failure to use these formalities does not give rise to homogenous consequences. Rather, for each of these categories, there are subtly different effects arising from a failure to take all the formal steps required.
{"title":"4. Formalities and the Creation of Rights in Land","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0004","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0004","url":null,"abstract":"This chapter examines the formality rules in relation to transactions involving land, which are essential to the operation of the land law system in practice. Formality rules play an important role in protecting vulnerable individuals; in ensuring caution; and in preserving the essence of an agreement should any future disputes arise. The chapter then details the formalities required to create an enforceable contract in land; a deed; and a valid disposition of an equitable interest. It also explains that there are different formality rules relating to a declaration of trust and to the transfer of interests arising under a trust. A failure to use these formalities does not give rise to homogenous consequences. Rather, for each of these categories, there are subtly different effects arising from a failure to take all the formal steps required.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130568265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0017
E. Lees
This chapter reflects on the interaction between property law and human rights law. Property law and human rights can interact in a number of different ways. The major division distinguishes those cases where human rights arguments are made to ‘bolster’ an existing property law-based argument, and those where the human rights argument is made to attempt to limit the scope of a property right. Thus, one can see the rules of property law and human rights working together, or they can be in conflict. The chapter first identifies the sources of human rights in English law, and then considers which rights are particularly important in relation to property law. It also looks at the mechanics by which key human rights interact with property law, and examines the question of horizontal effect in that context. Finally, the chapter addresses how human rights arguments have had influence in particular areas of land law, focusing on adverse possession, leases, actions for possession against trespassers, and mortgages.
{"title":"17. Property Law and Human Rights","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0017","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0017","url":null,"abstract":"This chapter reflects on the interaction between property law and human rights law. Property law and human rights can interact in a number of different ways. The major division distinguishes those cases where human rights arguments are made to ‘bolster’ an existing property law-based argument, and those where the human rights argument is made to attempt to limit the scope of a property right. Thus, one can see the rules of property law and human rights working together, or they can be in conflict. The chapter first identifies the sources of human rights in English law, and then considers which rights are particularly important in relation to property law. It also looks at the mechanics by which key human rights interact with property law, and examines the question of horizontal effect in that context. Finally, the chapter addresses how human rights arguments have had influence in particular areas of land law, focusing on adverse possession, leases, actions for possession against trespassers, and mortgages.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"61 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116429801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0012
E. Lees
This chapter examines mortgages, which are fundamental to the functioning of modern land law. They are the means by which most people finance the acquisition of their property. However, mortgages are more than simply a commercial transaction between a lender and a homeowner. They are also a property right in themselves and this brings with it a wide variety of options for the lender in terms of recovering their security. They also pose huge risks for the borrower. The chapter then explains the nature of the mortgage right and considers what terms can and cannot form part of a mortgage agreement. It also details the formal requirements of mortgages in terms of their creation, and identifies problems in the creation of a mortgage and the effects of these, looking in particular at the issues caused by undue influence. Moreover, the chapter describes the rights and obligations of the borrower in a mortgage (mortgagor), as well as that of the lender (mortgagee). Finally, it reflects on the third party effects of a mortgage, priorities, and land registration.
{"title":"12. Easements and Profits","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0012","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0012","url":null,"abstract":"This chapter examines mortgages, which are fundamental to the functioning of modern land law. They are the means by which most people finance the acquisition of their property. However, mortgages are more than simply a commercial transaction between a lender and a homeowner. They are also a property right in themselves and this brings with it a wide variety of options for the lender in terms of recovering their security. They also pose huge risks for the borrower. The chapter then explains the nature of the mortgage right and considers what terms can and cannot form part of a mortgage agreement. It also details the formal requirements of mortgages in terms of their creation, and identifies problems in the creation of a mortgage and the effects of these, looking in particular at the issues caused by undue influence. Moreover, the chapter describes the rights and obligations of the borrower in a mortgage (mortgagor), as well as that of the lender (mortgagee). Finally, it reflects on the third party effects of a mortgage, priorities, and land registration.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125603621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-27DOI: 10.1093/he/9780198810995.003.0015
E. Lees
This chapter explores the issue of how property rights interact, and how conflicts between rights-holders are resolved. This is not a question of competing validity, but rather, of competing priorities. Understanding how priority rules operate is one of the most significant elements of land law. The chapter first explains the general priority rules for registered land. It then looks at the special priority rules in place for cases involving dispositions of registered land; for cases involving registered charges; and for cases involving first registrations. The chapter also considers some exceptional cases where these normal priority rules are supplanted by rules bespoke to particular scenarios. Here, it discusses priority searches; waiver and consent; the special rules relating to acquisition mortgages; the registration gap; overreaching; and subrogation. Finally, the chapter examines the consequences of a loss of priority.
{"title":"15. Priorities","authors":"E. Lees","doi":"10.1093/he/9780198810995.003.0015","DOIUrl":"https://doi.org/10.1093/he/9780198810995.003.0015","url":null,"abstract":"This chapter explores the issue of how property rights interact, and how conflicts between rights-holders are resolved. This is not a question of competing validity, but rather, of competing priorities. Understanding how priority rules operate is one of the most significant elements of land law. The chapter first explains the general priority rules for registered land. It then looks at the special priority rules in place for cases involving dispositions of registered land; for cases involving registered charges; and for cases involving first registrations. The chapter also considers some exceptional cases where these normal priority rules are supplanted by rules bespoke to particular scenarios. Here, it discusses priority searches; waiver and consent; the special rules relating to acquisition mortgages; the registration gap; overreaching; and subrogation. Finally, the chapter examines the consequences of a loss of priority.","PeriodicalId":340642,"journal":{"name":"The Principles of Land Law","volume":"22 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131805536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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