Lecture 1 – Introduction to Land Law

What is Land?
Gray and Gray speak of 5 dimensions of land
- The first 3 are of land as solid reality
- The 4th dimension is that of time in the form of the
doctrine of estates.
- The 5th dimension emerged with the recognition that
estates could be held ‘at law or in equity’ and with it the
development of the juristic device of the trust.

Statutory Definition
Law of Property Act 1925 s.20(1)(ix)
Land of any tenure, and mines and minerals, whether or not
held apart from the surface buildings (whether the division is
horizontal, vertical or made in any other way) and other
corporeal hereditaments; also a manor, an advowson, and a
rent and other incorporeal hereditaments, and an easement,
right, privilege or benefit in, over or derived from land.

Land: Physical Fact and Abstract Entitlement

- It is important to note that ‘land’ in English land law
reflects a ‘deep structural indeterminacy’ about whether it
is physical fact or abstract entitlement.
Hereditaments
Property right that is capable of being inherited.
Corporeal Hereditaments
- Property right that is capable of being inherited.
Are substantial and permanent objects which are integral to or
closely connected with immovable property, including but not
limited to:
- The surface layer or solum
- Buildings, trees
- Subjacent minerals (with certain exceptions)
- Some super adjacent airspace.

Incorporeal Hereditaments
‘Intangible rights which may be enjoyed over or in respect of
land’, which is owned by someone else. Examples are:
- Easements & Profits
Realty
Together corporeal and incorporeal hereditaments are known
as realty as
distinguished from personalty (personal and moveable
property).
The realty/personalty distinction was important historically.
Realty gave rights to specific performance of entitlement rather
than money damages. Prior to 1925 statutory reforms the
intestate inheritance was different for real and personal
property.

Three Dimensions of Land

Vertical Extent
Bernstein v Skyviews (1978)
Limits the landowner’s rights vertically to such heights as is
necessary for the ordinary use and enjoyment of his land and
the structures upon it. (per Griffiths, J at 488). See Civil
Aviation Act 1982 giving aircraft the right to fly over land.

Subterranean Extent

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Bocardo v Star Energy (2010)
The landowner is the owner of the strata beneath it, including
the minerals that are to be found there, unless there has been
an alienation by a conveyance, at common law or by statute to
someone else.
The case concerned an oil field in Surrey. Star Energy drilled for
oil from neighbouring land diagonally under Bocardo’s land for
access to the oil. Bocardo sued for trespass.

Overcoming the ‘Bocardo’ Problem: Hydraulic Fracturing

(Fracking)
The Infrastructure Act 2015
Sections 43, et seq
- Section 43 provides a right to use deep-level land below
300m without permission to exploit petroleum or deep
geothermal energy. This overcomes the ‘Bocardo’ problem
for energy companies.

Chattels, Fixtures and Land

Elitestone v Morris (1997)
Threefold classification: an action brought onto the land can be
(a) chattel, (b) fixture and (c) part and parcel of the land itself.
Categories B and C are part of the land.
Whether a structure has become part and parcel of the land
itself depends upon:
- The degree of annexation to the land
- The object of annexation

Incorporeal Hereditaments e.g. The Right of Way

Land not only comprises the air above, the minerals below and
the fixtures and annexed buildings on top, but also the rights
that attach to the land over the land of another. So, for

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example if A has a right of way over B’s land, that right of way
is part of A’s ‘land’ and in any transfer of A’s land to C, the right
would pass to C along with the other more tangible aspects of
A’s land.

The Fourth Dimension: Estates in Land

In English Law one does not own land, but rather an estate in
land. An estate represents a slice of time in the land. Different
estates have different temporal durations.

Freehold Estate “fee simple absolute in possession”

The freehold is an estate of potentially unlimited duration. It is
capable more or less indefinitely of transfer inter vivos or of
devolution on death. The freehold estate is the amplest estate
in land.
Leasehold Estate
Leasehold estate or term of years absolute. Exclusive
possession of land for a certain time. Its status as an estate was
confirmed by the Law of Property 1925 (in the medieval
period, leases were considered to be personal or contractual
rather than proprietary in nature).
Common Law Estates
The common law estates were preserved although modified in
the 1925 legislation and the Land Registration Act 2002 is
still premised on the intellectual construct of the estate.
Even by 1925 the fee simple estate was the primary estate in
English Law and the other former freehold estates that existed
in equitable form had become rare.

In the absence of words of limitation, all conveyances from

1926 onwards are presumed to invest the grantee with a fee
simple estate. The old, qualified freehold estates are capable of
creation on under some statutorily regulated trust or
settlement.

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Theory of Tenure
- Arose out of the system of holding land of the feudal
system of holding land of a superior in return for service.
Doctrine lost most of its practical significance after the
dismantling of the feudal system; nevertheless,
rudimentary traces of tenurial theory remain today.
- No subject can own land except by tenure from the crown.
The Land Registry is only empowered to register estates in
land and ‘land’ requires the existence of tenure.
- Thus whereas the concept of the estate systematised the
relationship between the landholder or ‘tenant’ and the
physical land, the doctrine of tenures described the
relationship between each tenant and his immediate
superior within the feudal structure which had the king at
the top. Complex tariff of services owed to the feudal
superior and valuable incidents or privileges of tenure.
Doctrine of tenures indicated the nature of the
relationship between every occupier of land and his baron
or lord.

Commonhold – Consultation and Reform

The Law Commission is currently considering responses to its
consultation and is due to report in Spring 2020.
The time is right for commonhold announce Law
Commission
The Law Commission today has proposed reforms that would
support the expansion of commonhold as an alternative to

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leasehold. Commonhold was introduced in 2002 as a new way
to own property. Commonhold allows a person to own a
freehold flat and at the same time be a member of the
company which owns and manages the shared area and the
structure of the building.

Fifth Dimension of Analysis: Law and Equity

- An estate in land can be subject to ownership in both land
and in equity.
- Blackacre can be owned at law by A but in equity by B. A
can own a legal fee simple estate and B an equitable fee
simple estate.

Distinction between law and equitable rights

- Difference of Origins: Legal rights originate in
documentary formality or registration; equitable by
informal transactions, by implication from circumstance
and obligation of conscience.
- Difference of Focus: Legal rights are concerned with the
outer form of proprietary entitlement whilst equity is
concerned with the reality of the parties’ intentions (actual
or presumed) with regard to the beneficial enjoyment of
land.
- Differences of Remedial Outcome: Equitable remedies are
discretionary and acts in personam. Thus remedies that
act directly including injunctions, decrees of specific
performance and orders for rectification.

Whereas the remedy for breach of contract is usually money

damages, the remedy for breach of contract in relation to a
land interest is an order of specific performance.
Non-compliance with a restrictive covenant and injunction
restraining further breach on pain of liability for contempt of
court.
In these and many other ways equity, by virtue of the
immediacy of its remedial impact, effectively converts

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contractual promises into a conferment of enforceable
‘property’ in the promisor’s land.

Differentiation of legal and equitable ownership

So long as there is a single owner of an estate, there is no need
to distinguish between a legal and equitable estate. ‘But the
moment this totality of ownership is split between two or more
persons, the device of the trust become virtually unavoidable in
English law, ownership of the formal or documentary estate
being a phenomenon recognised at law and ownership of the
beneficial estate being recognised only in equity’.

Impact of the trust on Third Parties

Relationship of the trust was initially a personal one between
the trustee and his beneficiaries. This fiduciary relationship
could be dislocated by the death, bankruptcy or transfer of the
legal estate to a third party so that equity expanded the rights
of the beneficiaries. “This extension of trust liability to third
parties reinforced, in its turn, the perception that equitable
rights were akin to property rights. In effect, the benefit of the
fiduciary obligation of the trust enlarged into a form of
proprietary title or interest”.

Express Trust
Separation of administration and enjoyment of land. The
trustee is invested with purely nominal, legal titled. The
substance of the practical benefit of the land held on trust –
whether by occupation, rental or sale is reserved for the
equitable owner.
A declaration of trust respecting land must be ‘manifested and
proved by some writing’ signed by the author of the trust.

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Implied Trust
More trusts are created by implication – especially in the family
context. It falls within the remit of any court to construct an
equitable entitlement on behalf of a claimant who can show
that another has incurred a ‘conscientious obligation to hold a
legal title on trust for him or her as a beneficiary’. Implied
trusts fall into two categories: the resulting trust and the
constructive trust.
Standard of evidence to make good a claim is demanding;
nevertheless, circumstances where no enforceable express
trust is disclosed may give rise to a valid resulting or
constructive trust.