PROPERTY LAW

CM 1 : 17/01/23

è Written exam on the 4th or 11th April

è Oral assessment (« grade » from A to F qui va ponderer la note de partiel si on le rate,
ne peut pas baisser la moyenne)
è [email protected]

Cours de présentation

Ø OVERVIEW OF THE COURSE / TABLE OF CONTENTS

PART 1: Ownership and property rights

PART 2: Tenures and estates
PART 3: Possession of Land (equity)
PART 4: Methods of Acquisition
PART 5: Non-Possessory Land Use Rights
PART 6: Registration of Title

CM 2: 18/01/23

Introduction
The origin of the law of property is rooted in the origin of common law itself:
- Common law meaning ”the law which was applied to the country as a whole by the King’s ordinary courts – as opposed to the
local feudal and customary laws which varied from place to place” (Megarry & Wade, 2019).

Ø Timeline:

Prior 1066: Each tribe = different law

Sources of property law :

- Mixed of common law (Courts)
- Statutes
- Equity (for a certain interest in land not protected at law, in common law)
Property rights at the equity are the weakest

- 1066: Norman Conquest & the Domesday Book

Judges are still used the Domesday Book in some cases

«The oldest ‘public record’ in England and probably the most remarkable statistical document in the history of Europe »
[H. C. Darby, Domesday England. Domesday Geography of England, Cambridge, CUP, 1979, p. 12].

William the Conqueror, from his coronation on December 25, 1066, defined a new reorganization of the lands of the kingdom.

Idea: not just structure land, he wanted to make money out of that land, optimizes the Kingdom’s revenues.

4 aims:
- Optimize the Kingdom’s revenues
- Revise the tax system
- Rationalize the distribution of land
- Resolve property disputes

Based on a feudal structure: hierarchised.

Still pretty much the same nowadays bc UK had a revolution

Peasants pay to the knights who pays to the lords who pays to the King to own land.

This exported Norman-based system lasted into force for centuries.

The main statutory reforms took place in the beginning of the 20th Century with the “1925 Property Legislation” which covers:

- Law of Property Act 1922 and the Law of Property (amendment) Act 1924
- Law of Property Act 1925
- Settled Land Act 1925
- The Trustee Act 1925
- The Land Registration Act 1925
- The Land Charges Act 1925
- The Administration of Estates Act 1925

Since 1925, there has been a steady flow of legislation which have replaced the old statutes:

- The Law of Property (Amendment) Act 1926

- The Perpetuities and Accumulations Act 1964
- The Law of Property (Joint Tenants) Act 1964
- The Land Registration and Land Charges Act 1971
- The Land Charges Act 1972
- The Local Land Charges Act 1975
- The Rentcharges Act 1977
- The Charging Orders Act 1979
- The Land Registration Acts 1986, 1988 & 1997
- The Reverter of Sites Act 1987
 - The Law of Property (Miscellaneous Provisions) Acts 1989 & 1994
- The Access to Neighbouring Land Act 1992
- The Landlord and Tenant (Covenants) Act 1995
- The Trusts of Land and Appointment of Trustees Act 1996
- The Trustee Delegation Act 1999
- The Trustee Act 2000
- The Land Registration Act 2002
- The Commonhold and Leasehold Reform Act 2002
- The Perpetuities and Accumulations Act 2009
- The Inheritance and Trustee’s Powers Act 2013
- The Housing and Planning Act 2016
- The Leasehold Reform (Ground Rent) Act 2022
- The Leasehold and Freehold Reform Bill 2023-2024 (introduced to the House of Commons on 27 November 2023)

= to use in practical cases

Part 1 – Ownership and Property Rights

è What does property mean?

2 families of property rights in the UK:

1. Real property (in rem)

Theses cases deals with relationship btw individuals and a thing

if B has a property right in a piece of land, B’s right can bind the rest of the world.
• A land, a house

2. Personal property (in personam)

Only deals with btw individuals

if B has a personal right against A, B can only assert that right against A.
• A debt, a wage
National Provincial Bank v Ainsworh [1965]

Blackstone defined the right of real property as:

“the sole and despotic dominion which one man claims and exercises over the external things of the world, in
total exclusion of the right of any other individual in the universe”
[Commentaries of the Law of England, 1766, vol. 2, book 2, chapter 1]

National Provincial Bank v Ainsworth, House of Lords [1965]

Facts: Mr and Mrs Ainsworth were happily married and were living their best life in Hastings (Sussex). Mr
Ainsworth was the sole owner of their house (only him had a property right). He borrowed £1,000 from the bank
for starting his company and gave the bank a charge (=a mortgage) on the house. However, Mr Ainsworth found
happiness elsewhere and then left his wife living in the home.
A few years later, he fell behind his payments to the bank (as a borrower) and the bank sought possession of the
house. Mrs Ainsworth refused to leave the house as she argued that the arrangement made with her ex-
husband was binding the bank.
Issue: Was Mrs Ainsworth having a property right or a personal right in the house?
She only has a personal right: difference btw real property and personal property
Mr had the real property but she only had a personal property based on the fact of her relationship with the
actual owner
So she had to leave the house...

Lord Wilberforce noted that:

“the wife has no specific right against her husband to be provided with any particular house, nor to remain in any
particular house (...) the wife's rights as regards the occupation of her husband’s property, are essentially of a
personal kind”.
“Before a right or an interest can be admitted into the category of property, or of a right affecting property, it
must be:
☑definable,
☑identifiable by third parties,
☑capable in its nature of assumption by third parties,
☑ have some degree of permanence or stability.
The wife’s right has none of these qualities, it is characterised by the reverse of them”.

è Definition of a land (connected to definition of property)

What does a Land mean?

3elements of a land:
Belongs to a land:
- Things attached to, or part and parcel of, the land
- Things lost and then found on or in the land
- Natural things growing or living on the land

1. Things attached to, or part and parcel of, the land

Property rights include not only the house on the surface of the land, but also :
Ø A right to control of the area above and below the surface of land
Ø Anything that is part / parcel of the land
Ø Any things attached to the land

Bennis v McMahon [2002] Colchester County Court

Facts: Mr Bennis had a property right in a house. He sold that right to Mr and Mrs McMahon. However, when
the couple moved in, they were quite surprised to find out that Mr Bennis had removed items: tower rail
attached to the central heating, signs (name and number of the house) and paving stones from the garden. Mr
Bennis thought he could remove those things as they were not listed in the sale contract.
Judgment: Mr Bennis was ordered to pay the couple £1,166 in compensation for the items he removed as these
items were part of the scope of property right = they were attached to the land

Elistone Ltd v Morris [1997] UKHL 15

Facts: Elistone Ltd had a property right in land in Murton. Mr Morris was living in a wooden bungalow on that
land and paid an annual fee to Elistone Ltd. The bungalow was resting on concrete pillars, attached to the
ground. As Elistone Ltd wanted to develop the land, he brought proceedings to remove Mr Morris from the land.
Judgment: from photographs, the House of Lords considered that the bungalow “could not be taken down and
re-erected elsewhere. It could only be removed by a process of demolition” = therefore, it was part of the land
and not just a “fixture” or an accessory and so he was right in claimaing his property rights

2. Natural things growing or living on the land

Plants, crops, wild flowers, growing on a land are part of the land and belong to the owner (leaseholder or
freeholder).
However, an animal does not give to the landowner a particular right.
If your neighbour’s cat spends all of his time on your land, it does not mean you have a property right on the cat.
Except for wild animals. Even though they cannot properly be owned, they might give to the landowner specific /
limited rights on the land depending on the case.

Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2020] EWCA Civ 578

Facts: The Borwick Lakes are famous for their fish specimen.
The Borwick Development Solutions (BDS) operated a commercial fishery on its land and
permitted anglers to fish at the lakes in return for a fee. The lakes were a self-contained system,
with no natural way for the fish to enter or escape. The fish were returned to the water soon after.
BDS was the former owner of the land (lakes included). It borrowed money on the security of a legal charge over
the land and had difficulties in repaying the loan. The mortgagee’s receiver sold BDS to Clear Water Fisheries but
nothing was provided in the sale contract. BDS later said that the lakes (and therefore the fish) were not part of
the land.
Conclusion: BDS could not claim ownership of the fish. Wild animals cannot be owned whilst alive. A landowner
may instead claim to have acquired a limited property right as a result of his/her work (per industriam) which
lasts as long as he/she has sufficient control of the animals as to amount to possession of them.

If it is a result of ur work, u can claim property rights over it but here they had sold the land and lost the control
of the fish.

3. Things lost and then found on or in the land

When a hidden, lost or abandoned object is found of someone’s land, a lot of people may wish to assert a claim
to the treasure. There might also be a broader public interest in this object.
U can claim for something u found unless it is a treasure

A treasure is defined by the Treasure Act 1996, s. 1 as:

§Any object at least 300 years old which has metallic content of which 10% by weight is precious metal or 10
coins 300 y old;
§ Any outstanding historical/ archaeological or/ cultural importance object at least 200 years old; If the
treasure’s owner is not identified, the treasure vests in the Crown.

The first general rule set was: you can assert your property right against the finder (or thief) because your
property right arose before that of the finder of thief = the party with the earliest property right wins.

Fletcher v Chief Constable of Leicestershire, [2013] EWCA Civ 381

In this case, Mr. Fletcher was renovating an unoccupied flat when he discovered a hidden metal box with
£18,000 in it. He brought the box to the police station. According to the policemen, the box had been hidden by
a criminal who had the intention to recover it. So the police officers applied to the magistrates’ court for an
order that the money be forfeited [gagée] under the Proceeds of Crime Act 2002, s. 298(2)(b). The order was
made. As a result, Mr Fletcher was deprived of any property right.

The first general rule has been modified as time goes by:

1. If Bob occupies a building on the land, and, before the object was lost, Bob had manifested an intention
to exercise control over the building/things in it, then Bob has a property right superior to that of the
finder of the object.

Parker v British Airways Board [1982] QB 1004

Facts: Mr Parker spotted a gold bracelet in the executive lounge of BA. He handed it to BA staff, saying that the
bracelet should be returned to him if no one claimed it. After 7 months, no one claimed it, so Mr Parker
requested the bracelet. BA sold the bracelet for £850.
Judgment: Judges considered that BA did not acquire a property right in the bracelet because it was last on its
land. BA did not manifest such intention.

NB: it would be different for a private property (house): Flack v National Crime Authority [1998] 156 ALR 501.

2. If the finder was a trespasser on Bob’s land, then, as a matter of ‘public policy’, Bob will have a property
right superior to that of the finder.

Costello v Chief Constable of Derbyshire [2001] 3 All ER 150

Facts: The Police found Mr Costello in possession of a Ford Escort car and suspected him to have stolen it. The
officers seized the car. According to section 22 of the Police and Criminal Evidence (PACE) Act 1984, the Police
was empowered to retain the car as long as it was necessary in order to establish its lawful owner. But the
inquiries failed, so the ‘necessary’ time expired. Nonetheless, the Police refused to give the car back to Mr
Costello who eventually sued them.
Judgment: The Court considered that “possession, whether obtained lawfully or not, vested in the possessor a
possessory title which was good against the world save anyone setting up or claiming under a better title”.

U can steal something, become the owner but what is the possessory title (weak title that u can lose at any
time)? It is a title in equity so here it gave to Costello a propriety rights in equity, not a law.
U r a different owner, u r an owner of equity not a law meaning that the original owner of the car who has the
original title of it, who can prove that he is a proprietary right a t law as a superior right to one of the stealers

3. If the object was found in, rather than on the land, Bob will have a property right superior to the finder.

In other words, Bob can establish possession of the lost object in the land through his own possession of the
land. Bob’s possessory right is then stronger than that of the finder, but still weaker than the property right of
the original owner.
Waverley Borough Council v Fletcher [1996] QB 334
Facts: The Borough Council had a property right in a Park open to the public. Mr. Fletcher is a metal detector
nerd, and found a medieval gold brooch which was 9 inches below the surface. It was not a treasure trove,
therefore the Crown could not claim property over it. However, the Council claimed it as the brooch had been
lost and found on its land (prior property right).
Conclusion: When a thing is attached to OR found in a land, the owner of the land has the better title. Therefore,
Mr. Fletcher could not claim property right over the medieval gold brooch.

Firac Method:

Facts
Issue (Legal Issue)
Rule
Application
Conclusion

CM 3: 24/01/24

Part 2 – Tenures and Estates

From the past: the Tenures system

English law still retains its original basis that all land in England belongs to the Crown.
A small part of that land is in the Crown's own occupation and such land is described as the demesne land.
And the rest of the land has been granted by the Crown to individuals who are strictly speaking : the feudal tenants => they are the freehold
owners.

All land in England and Wales still fold into one of these 2 categories.
Most landowners remain today unaware and unaffected by their relationship with the Crown.

This feudal system has very few practical consequences :

- All landowners may be affected by it

Ex : If someone who owns a house does not have a disposing of property before dying (a will) and no surviving family members, we will have
to look at the register to see who was the last owner originally (to the dead person) => then he will recover the property of the land.
In France, the town inherit form the land
Willian the conqueror saw all land has his and granted some land to be held of him as other lord
These lands were granted not by an out and out transfer (traditionnel seller buyer) but to be held upon certain conditions.
He was expected this lord to give him soldiers, horses, fighting etc
The king only needed to look at his tenants in chief (Lords and Bishops) and in return, they would look at all the hierarchy (hold them from
the king then someone hold them for them etc)

Feudal system became standernise and each set of servants were called a tenure (“I hold my land form”).

Feudal system has very few practical consequences

All landowners may be affected by it for example if someone owns a house dies without having dispose of his or her property before dying
(for ex in a will) and this person has no surviving family members, we will have to look at the registers to know who was the last owner and
this owner will become the property of the land
Willian the conqueror regarded all the lands in his new kingdom as his ? request
He granted certain lands to be held off him as of the lords
Granted not by an out and out transfer: transition seller/buyer but to be hold upon certain convictions

Ex: William gave some lands to knights and he was expecting from the knights some services back like giving him horses and men and maybe
14 a year a fighting.
The king needed to look only to the Tenants in chief and in return the tenants in chief were making sure that the knights were doing their
obligations to the king
1066, a thousand and five hundred Tenants in chief

Feudal became standardized : there was one set of services > became known as knights services and each set of service was called a tenure

There were 3 main types of tenures in common law (not equity), classification was based upon the services that the tenants were obliged to
perform for his lords :
- Free tenures: spiritual tenures (lords and bishops, king was giving lands so that lords could pray for the king’s house…), tenures in
chivalry (military services), tenures in socage (most ppl peasants for agricultural services)
- Unfree tenures : villeinage, hold by common labourers and u also had slaves in the unfree tenures

Each form of tenure required a form of services for the land

Each sets of service = tenure

In early times, no theoretical limit to the number of intervening tenures btw the King and the tenants
= a new rung could be added at the end of the ladder: it was an infinite division of lands
Land should be granted in return for not nominal services but for …
Appears to have become the general rule in the 13th century that tenants could alienate by substitution without the lord’s consent

Matter was resolved this statute: Quia Emptores (1290) : king Edward the 1st
This act prohibited the alienation by subinfeudation, all free tenants were authorized to alienate the whole or parts of their land by
substitution, without the lord’s consent

On alienation of part of the land by substitution, the feudal services were to be apportioned
The statute applied only to grants in fee simple
No new tenants could be created except by the Crown
The network of tenants could no longer grow and this statute is still into force today, Charles the 3rd can not create new tenants, he can ask
for new services
It ensures by all lands is held in tenants of the Crown
A fee: small division of the land (seigneurie)
The lord of the fee is the successor in title today to the person who was the lord in 1290

The Tenures Abolition Act 1660

The system of tenures in land holding in return of services fell into decay long before being legally abolished
After the restoration of the monarchy, the Tenures Abolition Act converted all tenures into free & common
socage.

Two different doctrines:

- Doctrine of tenures and the q° of the tenures to know if it is tenure or state :
• What are the terms according to which you hold a land?
Tenures : all land is held of the crown in one or other of the various tenures

- Doctrine of estate: land held in tenure is also held for an estate (for a period of time based on your
‘status’
• For how long are u holding the land?

Those doctrine has contributed to build the land system in the UK

Land granted in tail: has to be ur lineal descendant / Heir does not have to be a descendant
= descendant : cousins, brother, child etc / = heirs : only the children

English law has been modernized and we had some contracts: leasehold which are not written in the feudal
system, it is a creature of the parliament , has no medieval roots

-> Today if you want to acquire a land :

* Heritage from the past : tenures => Freehold (based on the feudal structure)
* Since 1290 : Leasehold (based on contract law) => created by the gov
You can now acquire either a freehold (with the feudal structure) or a leasehold land (with a contract).

Modern property law: 1925 legislation

The word freehold is sometimes used to express the quality of the tenure and sometimes the quantity of the
estate

Freehold – You own the property and the land it's built on for as long as you want. Leasehold – You own the
property for a set period, but not the land it's built on.

è There are three different kinds of estates/ freeholds:

- Fee simple: always existed in English law
- Fee tail: the one that u can only give to ur lineal descendants, has been introduced in 1285 and can no
longer be created, few of them remains but can’t be created anymore
- And life estate: always existed in English law

The word simple distinguished the class of heirs who can inherited, can be given to anyone entitled to in his or
her quality of owners heirs
And the fee simple is the most substantial estate which can exist in lands
A tenant in fee simple enjoys all the advantages of absolute ownership, the fee simple tenants’ powers of
enjoying usingand abusing the land are limited in many ways by statute and by the rights of the neighbors but
they are not limited by any inherit narrowness in the concept of property in land

è Characteristics of a freehold:

- Right of alienation
- The owner of a fee simple can dispose of the estate in whatever way he thinks, either by will or inter
vivos
- Freedom of disposition is subject to qualifications:
• Where a person fails to make reasonable financial provision
- Unlimited period b-when u buy a freehold u have it for an unlimited period of time : u can sell it bc u
have sovereignty over ur land > when u loose the land bc u sell it
It stays in the family
- Gives u the right to everything which is in/on and over the land held in Kelsen v Imperial Tobacco Co Ltd
[1957] 2 QB 334
Rights over the land: when u have a freehold the freeholder is subject to such rights so u can dispose of minerals
which are in or over the land (mineral that u can find on the top of a building) : Wilson and Wadell case (1876)
The only limit is prohibited by the law: nuisance and negligence

- A freehold owner can sue for damages or seeks injunction against those who commit trespass or
nuisance
Sometimes happened that a landowner wishes to undertake work on the lands: only going to a neighbor’s land =
if the neighbor refuses the landowner may go to the court for an access order to enable him to do works that are
reasonably necessary for the preservation of all of any parts of the land
Exemple vu en class : veut construire une piscine et a besoin de passer les machines sur les lands des voisins >
they say no bc they have flowers… > go court > judge say no bc a swimming pool is not reasonably necessary

- The liability in tort when u own the freehold : a landowner may be liable for injuries caused to
subparties by acts or/and omissions
Ex: water escape from ur reservoir, u r liable bc as the owner u have the responsibility to take care of this
It was held in Rylands v Fletcher 1868 HOL
Ex: if u have a lamp projecting lights over ur highway (chemin pédestre – in American : autoroutes, motorway is
autoroute in English) and it gets into a dangerous state of repair and it falls on someone : U r liable = Tarry v
Ashton (1876)

Ø Regarding nuisances:

Ex: inspired by Bland v Yates (1914), in this case u had the defendant making an unusual and excessive collection
of manual (du fumier) which attracted flies and causes the smell
He was held liable for nuisance
Ex: Tetley v Chitty (1986), u have ur land and u permit ur friends to go kart racing on the land, if this causes
noises u r liable for nuisance
Ex: if u fail to take reasonable steps to prevent the incursion of … into ur neighbor lands: Delaware Mansions v
Westminster CC (2001

The owners’ rights over the air space above the lands and buildings are limited to the height necessary for their
ordinary use and enjoyment
= within this limit, the owner can take proceedings for trespass and also for nuisance or both
Ex: branches of ur neighbor’s trees is on ur land > it is a trespass and u can ask the judge to remove the tree
Ex: An extractor fan > if it’s on ur neighbor land it is forbidden
Telephone wires also or any kind of projectiles

After the air space, the minerals : as a freeholder, u own certain minerals
A free holder is entitled to all mines and minerals that he could find under the land but the crown is entitled to
all gold and silver and petrol
Treasure provided by the Treasure Act (1966)

CM 4: 25/01/2024

è Leasehold Estates:

They have a maximum term, the tenants may hold the land for a fix term duration
• Lace v Chantler, Court of Appeal, 11 Feb. 1944: leasehold will end by “the end of war” is equivocal, it is
not a fix term, not a defined term
• If the term is not defined, the judge can requalify as an “estate for life” for 99 years (Berrisford v
Mexfield Housing Co-operative Ltd, Supreme Court [2011] UKSC 52.

U used to pay a ground rent to the freeholder

With the leasehold u buy the property but not the land (approval of freeholder to do works in the garden) but if
u buy freehold the garden is yours bc u own everything, not only the house, but also the ground where the
house is built
Leasehold Reform (Ground Rent) Act 2022

Ø Freeholders (landlords) are no longer able to make financial demands for ground rent on leaseholders
(not tenants).
The one who had the freehold cannot ask the one who had the leasehold to pay the rent (bc as a leasehold u did
not own the land so had to pay a rent)
The leaseholders have not to pay anymore the ground rent
Only for new leases contracting after the Act went in force
NB: >> 4.98 million properties under leasehold

A ground rent ≠ A service charge (maintenance and running costs of the building).
U can still have to pay a service charge
If freeholder breaches this Act of parliament, it is a civil offence
A breach of the ground rent restrictions is a civil offence (penalty between £500-£30 000).

Ø This new rule only applies on NEW leases (for now).

https://www.propertybeacon.co.uk/ground-rent-meaning-property/ (Vidéo explicative interessante)

Leasehold and Freehold Reform Bill (2024)

Is currently in the House of Commons but should be adopted by the summer

Ø The Bill aims for:

Intent shared at the King’s Speech (Charles III) on November 2023 (at
5:50) https://bit.ly/3vXdlSc

Exam training
Ø Practical Case #1:

Cf powerpoint – about things attached/ part of the land

Ø Correction:

resolving practical pb (put urself in the head of a lawyer, advice them, take initiatives, do not answer just one
question > sees broader, ex "be aware of that" "there is also this pb"

1. Facts
2. Legal issue
3. Rule (law)
4. Application of the cases:
5. Conclusion

I would consider that the house was part of the sold land and encourage them to sue him to ask for
- Compensation in money of te lost house on tills + the value it brought to the property
- It does not seem feasible to consider to get the house on tills back.

Ø Practical Case #2

Cf powerpoint – about ground rent and the new reforms

CM 5 – 31/01/24

Part 3 – Registration
If your land is not registered, it would be your property in equity and not at law, it would be weaker than it
should be.
Introduction
Registration title = fundamental departure from traditional system.
When the title is registered, the register presents the title as it stands and at any given time. In practical terms,
when you want to purchase a land (lease and freehold), you can investigate the register to see how it is
registered and what is registered. And as a purchaser, you can see if the seller has the power to sell the land.
If he is not registered in the register, he does not have any rights over the land.

Difference btw the system of registered title and the traditional system (feudal) are quite substantive + includes
4 effects/differences:

1. Registration vests the legal title in the registered proprietor – whether or not there has been a valid
transfer to that purchaser.

2. The system of register title abandons the principle that no one can pass a better title than their own
- cannot pass a better title than the one you hold
- in equity: will not have the principle title than someone that holds it at law

3. The system of priorities for registered land is entirely statutory and is completely different from the
applicable to unregistered land.
- acts of parliament vs unregistered land
- diff btw owning something at law (statute) vs in equity (non-registered) :

4. A registered title is guaranteed by the State in the sense that the Land Registry will indemnify that
person of their loss.
- If the Land Registry makes a mistake in registered a land which was not made to be registered it is his
own liability and you can have liability.

England and Wales have been subject to compulsory registration since December 1990.

Land Registration Act 2002 which contains a list of triggering events which leads to compulsory registration.
Today, 90% of the lands in E + W have registered land.
This act of parliament enacted the recommendation of the Law commission and the Law Registry.
=> beginning of Internet in 2000s so this act introduced electronic conveyancing : before 2002, everything was
on paper.
Land Registration Act 2002
This act employed different concept:

Ø Registrable estate
This act provides that certain legal estates may be registered with their own titles.
Once the estate is registered, it is called registered estate.

Ø Registrable dispositions
Certain dispositions of a registered estate have to be registered to have effect at law (and not in equity).
Eg: transfers of the legal estate, creation of legal estate.

Ø Protection of interest

3 methods to protect interest in land:

- Legal charges = do not have their own title, it is attached to another title. However, you have registered
the name of the proprietor of the charge.
- Burden of many interest which might be protected by the entry of a notice in the register
 - Restriction may be entered = it will regulate the circumstances in which this position of a registered
estate or charge may be the subject of an entry in the register.
It usually applies to trusts in land.

Ø Overriding interests = all the estate, rights and interests which are not protected on the register in any
way, but which nonetheless override the first registration.

I. The first registration can be voluntary or compulsory

The LRA Act 2002 makes the difference between those types of registration.

a) voluntary first registration

A person who owns or is entitled to have vested in him any of a registered estate may apply to be registered as
proprietor with its own title.

In the LRA act, there is a list of all the unregistered estate that can be registered:
- the freehold estate in land
- a lease granted for a term of more than 7 years (and these 7 years have not to be expired)
- A discontinuous lease of any duration
- Rent charge
- Franchise (in land law it is a right granted by the crown to hold a market or a fair)
- Profit à prendre in gross = when someone owns something and you have a profit à prendre on the land
(fish, take the wood)... You do not own the land but you have a profit à prendre on someone else’s land.
It is granted for an interest which is equivalent to a fee simple absolute imperception (= a freehold) in
terms of legal effect.
It is often used in rural areas to raise animals

The crown was not able to register the land that was held by the king or the queen in
domain as the sovereign or the lord paramount. The most significant holding of demand land is the foreshore
(most of the foreshore in the UK is owned by the crown and is not selling any land: voluntary registration could
not happen). Under the LRA act, the queen or the king may grant an estate in fee simple absolute to herself in
order to make an application for the voluntary registration of the estate.

b) compulsory first registration

Not based on the will of the owner but it is an obligation provided by the act.
The LRA act has extended the triggering events especially to include leases. For instance, all leases granted for a
term of more than 7 years have to be registered depend on the triggering event if it is voluntarily or compulsory)

On the side there are different dispositions requiring registration. These dispositions of unregistered land that
are required to be registered can be divided into 4 categories:

Ø Transfers and grants of or out of an unregistered legal estate which is either a freehold or a leasehold of
which more than 7 years are not expired. As triggering effects you have:

- A transfer of the freehold estate in land which happens by any legal means different from an operation
of law.
Eg: the freeholder dies: no operation at law, land owner has not sold the land.
- A transfer of the leasehold estate in land other than by operation of law.
Eg: same thing by the lease holder. It could also be the assignment of a mortgage term.
 - All the transfers and grants in connection with a secure tenant’s right to buy.
Eg: where you have a secure tenant and this tenant has a right to buy: owner
- All disposition made by the way of an assent of either a freehold or a leasehold which has more than 7
years to run
- In certain cases where you have a legal mortgage on a freehold estate or a leasehold estate which has 7
years to run from the date of the mortgage, there is a requirement to register the mortgaged estate.

A) The effect of not registering a land that is meant to be registered

The requirement of registration is granted in a statute the LRA Ac therefore it is a statutory duty to register that
you owe.
The period for registration is of 2 months and this period begins with the date of the triggering event. This date
might be extended by any interested person and if the registrar (head of the land registry) and you apply to the
register. If the registrar is satisfy that there is a good reason for expanding the extension, the registrar may by
order provide for the period of registration to end on such date or such date and it is specified in the order.

The first registration is compulsory bc there is a statutory sanction attached when you are not complying with
the requirement of registration. If a disposition that triggers the requirement of registration isn’t made (within 2
months or more if granted by the register) that disposition becomes void as regard as the transfer, grand or
creation of the legal estate.

Eg: in the case of a grant of a lease, the disposition would have effect as a contract made for valuable
consideration to grant the lease. If an application for first registration is made but then canceled (eg: when the
purchaser does not answer a requisition by the registrar), the effect is as if no application has been made. That
triggers the statutory sanctions.

B) The application for 1st registration

The procedure for application for the 1st registration is prescribed by the rules, and those rules provide details
as to the forms to be used and the documents that should be submitted in making the application. There is a
duty on the applicant to disclose the riding (profit à prendre... anything that is on the land → they will not be
registered but there will be a note on the register) interest which could affect the estate.

When the registrar examines a title on application for 1st registration, the registrar may make searches and
inquiries and give notices to other persons. He can also advertise the application if he has a doubt (in a local
newspaper to ask if anyone else is OK).

If there is an objection to the application and that this objection is not groundless, the registrar must refer the
matter to the 1st tiers tribunal. If there is no objection but the registrar refuses to register land (all the land or
particular titles in the land), no dispute can be referred to the tribunal and there is no right to appeal the
registrar’s decision.
Therefore, the only remedy for a party who is aggrieved by the decision is to make an application for judicial
review.

C) The effects of first registration

The effects depend upon the class of title with which the land is registered.
there are 4 classes of title:

Section 10 of the Land Registration Act of 2002 : There are 4 classes of title :
- Absolute title
- Qualified title
- Possessory title
- Good leasehold
 1. Absolute title:

with this title, a person may be registered with an absolute title of freehold, and he has to have a good holding
title at law (not in equity).

A defect in title is not an obstacle to registration, provided the registrar considers that it will not cause the
holding under it to be disturbed.

For leasehold : a person may be registered with an absolute title to leasehold land provided that the registrar is
satisfied that the applicant has a good title.

Whether a person is registered as an absolute freehold or leasehold, the estate is vested in the proprietor
including all the interest on the estate.
Ex: if you have a mine or animal in the land, these interests will be registered in your title.

The problem comes when you have unregistered interest that overrides the first registration. You can have
uncertain interest that nonetheless buys the first registration proprietor.
An applicant for first registration must disclose to the registrar most or all the overriding interest infecting the
estate to be registered (only applies if he knows it !).
These interests will be simply noted in the register and they will then not be overriding.
There is a list of 14 unregistered interests that can override the 1st registration:

- A lease granted for a term of 7 years or less which is not required to be registered
- interest belonging to a person in actual occupation.
- A legal easement (servitude) or a profit à prendre.
The only easement and profit that can override the 1st registration and those which are legal (does not
apply to equitable interest).

- All the customary rights those are usually own by the local community
- Public right: the public has rights on the land (eg: on a highway(to go from part of the city to the other),
all rivers...)
- Mineral rights: coal → in practice difficult because you do not know how long it will last
- Franchise: can be neither registered nor noted.
- Crown rent: right to rent which was reserved to the Crown on the granting of any freehold estate.
- You own land (lease or freehold), and on the land you have a river. What happens with the river banks?
Do you have to maintain the river banks? no. The public has a right to roam on the river bank, so it will
be the local county that will be in charge. You are not liable for the maintenance of the river bank.

2. Qualified title

They are rare in the UK + the effects of registering a qualified title is the same as registering an absolute title. The
only difference is that it does not affect the enforcement of a specified estate or interest.

CM 6 – 1/2/24
 3. Possessory title

The registrar may register a person with possessory title if he thinks that 2 conditions are met :
- The person is either in actual possession of the land or in receipt of the ransom profit of the land
- There is no other title with which this person can be registered

Effect: the registration has the same effect has the one with an absolute title except that it does not affect the
enforcement of any estate that is invest to or in derogation of the proprietor's title if that estate right or interest
subsisted at the time of first registration.
Ex: the applicant was registered with a possessory title which he owes as a freehold and it subsequently happens
that the applicant only had a leasehold estate, the holder of the freehold will be entitled to assert in the state
when the applicant lease expired.

4. Good leasehold

A lessee (locataire) will be registered with a good leasehold title rather than an absolute title where the registrar
is not able to approve the lease title to grant the lease.
In this situation, you can only give a good leasehold title.

Effect: the registration of a good leasehold title has the same effect as a registration as a good title except that it
does not affect the enforcement of an estate right or interest affecting or in derogation of the title of the lesser
of the lease.

If you have the lesser that has no title to the land for which he grant a lease, the registration of the lease as a
good leasehold title would not prevent the true owner of the land from evicting the lessee.

List of triggering Events (only applies to compulsory registration)

Land Registration Act 2002, s.4 :
Cf powerpoint page 57- 58 for the list

II. INDEFEACIBILITY

In the timeline you have registered your land and it might be at problem of the registration itself.

Can you complain about the registration made by the registrar of not ?
In principle, the registrar is indefeasible. (irréalisable / irreversible)

A) The principle of indefeasibility

Alteration of the Register

The registration can be rectified either by the court or by the registrar himself.
The main reasons are :

- Bring up to date the register :

the core of the system (has to be up to date)
- Correct a mistake :
The powers of the registrar and the court are tempered by a principle qualified as indefeasibility

If this rectification affects the title of the register of the proprietor, the proprietor would be entitled to claim
compensation for his or her loss.
If the registrer is not altered or rectified by the mistake, he will be entitled to compensation.

Alteration of the Register

Schedule 4 (LRA Act 2002)

Alteration of the Register
There is then a state guarantee for the titles registered.
Not only the register proprietor but also anyone feeling with the proprietor (lessee etc.) will be rely on the
register (if a mistake in the register can ask for all protection and compensation). This makes the registrar liable.
If the dispute is referred to the first tiers tribunal, the tribunal may direct the registrar either to cancel the
application or to give effect to the application in hole or in part if objections have not been made.

The judge can take 2 direction :

- Direction may include a condition that is specified entry made on the register for any title affected.
- Direction to reject any future application of a specified kind by a named party to the proceeding,
either unconditionally or unless this party satisfies specified conditions.

B) The alteration itself

This rectification can be made by a Court order or by the registrar itself.

Ø Alteration by a court order : 3 reasons to alter registration :

- Correct a mistake
- Ex : land register but the same land has already been sold by the steel or (mistake in
the names)
- Ex : when have a person register as the proprietor in the register but the land
belong to another person
- Update the register
- Giving effect to any estate/right/interest excepted from the effect of registration

Ø Alteration by the registrar: 5 reasons to alter registration :

- Correcting a mistake
- Updating the register
- Giving effect to any estate/right/interest excepted from the effect of registration
- Removing a superfluous entry : can override the second one. It ena blés the registrar to
remove superfluous entries as where a lease or a charge has been determined.
-Essential to have a reflection of the repetiot-n of land at any given time (know who
has a lease, who has a freehold, a franchise, a profit a prendre etc.

- Compensation : anyone can be entitled to receive compensation from the registrar if he suffers a loss
by reason of the alteration of the register or where the register is rectified against
a proprietor for forged (usage de faux) disposition.
- Ex : buy a land and the neighbour used a fault se doc to say that he is the proprietor
and the register is modified in that sense.

Even if the register is rectified in favour of an applicant, the applicant may still suffer a loss if in the
circumstances the rectification affects rights and interest created in the period of the mistake and it’s
rectification.

- Removing a superfluous entry can override the “updating the register”

It is an important power even to the registrar as it enables the registrar whether on occasion or on its own will
initiative to remove superfluous entry as well the lease or a charge has been determined
= having an accurate reflexion to the land system at any given time : on who has a freehold, who has a franchise,
profits… on the same land

Anyone can be identified by the registrar if he suffers loss by reason of alteration of the registrar or where the
register is rectified against a proprietor for forge this position (usage de faux)

Practical Case #1

- About registration of a leasehold (page 63)

Practical Case #2

- About extension and correction of a lease (page 68)

CM 7 – 8/02/24

Part 4 –Methods of acquisition

Formality requirements for the creation / Transfer of legal estates or interests in land

Three steps process

1. Formality of contract
2. Completion of contract
3. Registration

Stage of Contract
A) Contract
(1) Formality of contract

Process of creating legal interests or … is divided into 2 stages:

- Further contracts where the vender and purchaser enter a contractual sale as a legal estate and the
purchaser usually pays a deposit

- (2) Completion
The contract is executed by the vender
The purchase money is paid less the deposit already paid and the purchaser takes possession of the land (not
before)
and then the registration: the owner of the freehold ou leasehold register to become the official
proprietor/owner and the legal title does not vest in the purchaser until registration however equitable rights
may arise from the moment where the parties have entered the contract (doctrine of anticipation)

Section 2 of the Law Property (Miscellaneous Provisions) Act 1989

The contract as to be written, integrate all the terms agreed by the parties and may variate the delay when it will
come into force

The requirement for a valid contract or sell or other disposition of interest in land are provided by section 2 of
the Law of Property (Miscellaneous Provisions) Act 1989 – page 77 du pwp
This act replaced the requirements of the Law Property ACT 1925

1) A writing

1989 Act focuses on a written contract meaning that before 1989 in case of practical exam, the written contract
was not an obligation and u can sell a land by an oral contract (not valid after 1989) and this section 2 of the 89
Act has increase the formality requirements for contract and aggravated the consequences of non-compliance

è The written contract may take one or two forms:

- A singular doc signed by both parties
- Separate documents each signed by one of the parties and then exchanged

The document(s) must contain all of the terms expressly agreed by the parties and these terms can be contained
in a signed document or in a separate document that is incorporated by reference (like an annexe)
In that case u have to write in the contract that there is an annexe otherwise it is void

Section 2 applies to all contracts for the creation or transfer of an interest in land and in the case McCausland v
Duncan Lawrie Ltd [1997] 1 WLR 38, the court held that section 2 also applies to a variation of contracts as a
result unless the variation complies with section 2
The terms of the contract as originally agreed became enforceable
In that case, an attempt to vary the completion date of the C fails for non compliance with section 2

Section 2 applies equally to equitable interests and therefore would apply for a contract of an existing equitable
interest in land

S2 applies to contract for sales or other disposition of an interest in land

This statement > 2 consequences :

- S2 does not apply to contract that do not a disposing purpose even if that is the effect of the contract
Ex: Pitt v PHH Asset Management Ltd [1994] 1 WLR 327 , court held that S2 did not apply to a lock out
agreement (when u have a vender who agrees not to negotiate with anyone other than the purchaser for a fix
period of time : exclusivity of negotiation)

- S2 does not apply to contract that itself disposes of an interest of land and effects an immediate
disposition bc such a contract is not a promise to make a disposition in the future
Ex: S2 did not apply to an agreement which involved immediate declaration of trust over some plots of land
Ex: Contract for the sale of a legal estate which is an immediate C for a disposition (for example the transfer of a
leasehold and this transfer will occur in the future = not an immediate disposition) so S2 does apply to the 2nd
instance

Ex: Option to purchase (option d’achat) : q° whether S2 apply to option to purchase a land ?
= 2 stages in OTP
- 1st : option is granted
- 2nd : the option is exercised by the grantee
Before 1989, it was clear that the C that create the option must comply with the formality requirement but it has
been assumed by the court that the exercise of the OTP itself did not need to follow the formality requirements
Spiro v Glencrown Properties Ltd [1991] Ch 537: while the branch of the OTP must comply with the S2 of the 89
Act, the exercise of the option is an unilateral Act by the purchaser and does not need to comply with S2

Ø Contract by correspondence

Under S2 they are not possible since they do not meet the requirement for an exchange required by S2 however
correspondence may produce a contract where it results in the creation of a singular doc signed by both parties

2) Second element of contract: an exchange

According to judge Smith “the act of exchange is a formal delivery by each party into the actual or constructive
conception of the other with the intention that the party will become actually bound when exchange occurs (not
before)”
An exchange is a formal concept characterized by the parties mutual intention as regard documents and the
formal delivery
Commission for the New Towns v Cooper [1995] Ch 259

3) Last condition: a signature

S2 requires that the document(s) must be signed by each parties of the contract or by their authorized
representants
Green v Ireland [2011] EWHC 1305 – court agreed that a tight name at the end of an email constitute a signature
Neocleous v Rees [2019] EWHC 2462 – an exchange of email containing automatic footers with the senders’
names where the party has added “many thanks” at the end of the text and before the footer was found enough
authenticating intention

Law society issued specific guidance on the use of signatures, especially on the virtual execution of document
Since this guidance, come in forms of electronic signatures include the parties typing his name into a contract or
an email facing an image of her signature into the electronic version of the contract using a webpage e-signature
platform
A signature by virtual means (electronic signature) by contract involves an ink signature on the final form of the
document
Résumé: U sign > u scan it > u send it (email)

Retention of the original sign version of the doc is important as it may be required to prove the due execution

Signature is required by each party of the contract and not each party to the propose sell of land

Rabiu v Marlbray Ltd [2016] EWCA Civ 476: contract for sale stated that a husband and wife where to be joined
purchasers but the contract was not signed by the wife
The husband had proposed to sign on her behalf, but he did not had authority to do so bc no authorization no
mandate = it was held that there was a valid contract between the vender and that the husband and that S2 did
not mean that the wife as a supposed party to a C also have to sign

CM 8 – 15/02/24

Ø Does S2 apply to already executed contracts?

= S2 only applied to executory contract, not to already executed contract.
If there is a case with a contract that is already executed, S2 cannot be applied and the claim will fail.

Ø Does S2 apply to collateral contract? (contrat de garantie)

Page 81 pwp

S2 requires a contract for sale of land to contain all the terms agreed by the parties. If a term is mottled in the
contract there is no contract, even if the contract is signed and written according to S2.

Limit: S2 does not prevent the parties from entering a composite transaction which consists of a contract for sale
of land and other separate or collateral contract.
The challenge here for the transaction consist in distinguishing between the cases where the parties have
entered a composite transaction from those in which an omitted term is part of the bargain for the transfer of
land
If the parties are committed to separate parts of their bargain in several separate contracts, then the purpose
itself of S2 is undermined.
However, S2 is also open to abuse by parties who look around for expressly agreed terms which have not found
their way into the final form of land contract.
Why? Because the party in that situation try to escape from the bargain.

A and B negotiate the price of the house, say £500 000, and a separate price for the carpets and curtains, say £50
000. The negotiation for the sale of the house, it is implicit that
It implies the condition: if you sell the house, I buy the carpet (collateral contract). If you do not sell the house, I
do not buy the carpet.
If you do a contract to sell the house without mentioning the carpet. Are the contract bound to each other?
1) It would have been open to A and B to agree that the sale of the house was independent of any sale of
the carpets and curtains, so that A was to buy the house whether or not he bought the carpets and
curtains as well.= 1st situation the 2 contract are dependent + S2 is satisfied.

2) It would, equally, have been open to A and B to agree that the sale of the house was condition upon a
sale of the carpets and curtains, so that A would not be obliged to buy the house, nor B to sell it, unless
the carpets and curtains were sold also => they are linked in this situation. They are. + S2 not satisfied
because the contract on the curtains was not incorporated. S2 does not apply to the curtain contract.

Case:
- Angela sells the house (500 000)
- Peter sells drawings (1 000 000)
- John sells furniture within the house (75 000)
- Laure sells the sculpture (3 000 000)
They bargain.
Angela need to draft a contract for the sale of land.
They all have contracts. There are 4 contracts in the end.
In the 1st contract nothing is said about furniture. You think you buy everything in the house.
But in the bargain they cannot find an agreement to draft one single contract saying that the house.
Angela might agree to a lower price on the house in case of the bargain. The problem is that if they agree on the
same contract, the others might also need to lower their prices.
Angela sells the house.
 What happens to the 3 other contracts? Are they part of the contract for the sale of land? In this case it will only
be valid if it complies with S2? Or are all the contract implied in the contract of the sale of the house and if they
are deemed collateral by the court with the 1st one and they are not written?
It would be void. If they are collateral to a contract to sell land they are void because they do not comply with S2.

Conditions of S2 = contract signed + written + all the terms have to be written in the contract.
If the 3 other contracts are not in the contract, they are void.

Advise the client: you have to see the contracts as collate rate. The other contracts do not have to comply to S2
because they are part of the 1st one. Claim before the court the execution of the 4 contracts.

Advise the seller: the other contracts are worth nothing because they were separate and independent from each
other and do not comply with S2.
Ex: Rodin sculpture is not IKEA + it is grounded in the land and not easily movable = it is necessarily part of the
land. When you buy land you get everything that it is part of the land.
Do this with every contract.

Can the document (contract or document of contracts) can be rectified?

Principle: when the parties have reached an agreement, but the terms are not all recorded in the contract, or
are recorded wrongly, the court (and only it) may order a rectification for the document to comply with S2.
The court has the discretion to determine the time at which the contract will come into being.
This enables the court to take into account the possible effects of rectification on 3rd parties. who might enter a
transaction btw the day of the original contract (which was void because it did not comply with S2) and the court
decision which rectifies the contract.
In this situation, it is well established at the matter of law that the rectification may be awarded by the court on
the basis of a common mistake. And where there is a common agreement or intention of the parties to contract
on specific terms.

Ex: sign a contract that does not comply with S2. They can ask court for rectification. Once they have ask the
court to rectify, a 3rd party comes to help pay because the buyer does not have anymore money because of the
court proceedings, in this specific state, the court will determine at which time the contract will come into being.
They will rectify the contract for it to be in compliance with S2 and say the contract will be legally formed on XXX
day.

Controversy: rectification may also be possible where there is a unilateral mistake.

The party who was not mistake had acted unconscionably.
Answer: case Robert Leonard DevelopmentLtd v Wright [1994] NPC 49
= a purchaser agreed to buy a show flat, the price which included the carpets and furniture. This term was not
included in both written contracts and the vendor removed all the furniture. The contract was executed by the
transfer of the lease, and therefore, as we are facing an executed contract, the validity of the contract can no
longer be questioned. In this situation, the buyer sought damages for the breach of contract. The CA considered
that there was no separate or collateral contract for the sell of the furniture’s. it was part of one package for the
sale of the flat. The court held that the contract should be rectified to include the omitted term.
Oun v Ahmad:
The rectification has been refused by the court;
2 men signed an agreement for the sale of premises composed of a residential flat and an off license. The sale
was never completed and the question arose as to whether a valid contract for sale had been entered. The
agreement signed by the parties did not refer to an apportionment of the purchase price between the building,
fixters and fittings and the business good will. This matter was instead recorded by the parties in a different
second document. Mr Oun (purchaser) argued that the parties agreement should be rectified to include these
terms.

The judge said that :

• “In the first type of case, the written document does not incorporate all the terms expressly agreed, by
reason of a mistake in the recording of the agreement. In such a case, the court can rectify the written
document so as to incorporate all the terms expressly agreed and then the document as rectified
complies with section 2.” (= robert case)
• “In the second type of case, say the parties expressly agree upon five terms of their agreement. They
agree to record 4 of them in a written document and they do so. They agree that the 5th term shall
remain unrecorded in writing. The result is that the written document does not comply with section 2
and is of no effect. Can one party seek an order for rectification to the effect that the 5th term should
be incorporated into the written document so that the written document will then comply with section
2?”

= here, 2 parties found an agreement a contract. In it, they agreed not to include something. You cannot say you
made a mistake and forgot to record it in the contract. There is no mistake as long as you had agreed not to
record the term. A mistake is a mistake that is not consented.
???
The contract will stay valid. This mistake goes beyond the scope what the court has the power to do. At the end,
there was no sale of the premises.

è Effect of non compliance of S2:

There is no contract. 3 possible ways to mitigate their hardship:
1. Rectification
2. The finding of a collateral or a separate contract
3. f

Mackie counteh agreed in a letter to grant a charge on his own home as a guarantee for his own loan. ??? but
refused to take the charge. He argued that he was under no contractual duty to do so as the letter was only
signed by him and not by Kinane, so the letter was not in compliance wth S2. On his side Kinane argued that
Mackie Conteh was under a duty to him as a result of proprietary estoppel or constructive trust.
The CA found that the requirement of proprietary estoppel had been met and also those of a common intention
of a constructive trust.

2nd ex: Sahota v Priori

someone is forcing a claim into a constructive trust. The way to force the constructive trust may distort the case
applied to such cases. When you have a case of estoppel, it is clear that a promise on which the claimant had
relied will not always be enforced. Sometimes the claimant will have to settle for a lesser remedy; In contrast,
the common interest constructive trust doctrine is based on the intention of the parties and it seems that where
it is based on a specific promise made by A to B, such a promise will be enforced, there is therefore a risk that by
using a constructive trust analysis to bring come S2 into play a judge may also allow claimant a lower to have an
unjustifiably generous remedy.

Facts: the priors were in financial difficulties and were persuaded to embark in a mortgage rescue skeem (sale
and rent back). They sold their home of 35y to Sahota at an under value upon the promise that they would be
allowed to remain in the house for as long as they wanted and paid for the rent. They were also persuaded to
sign a 5y lease on their home on the basis that it was only to ensure that they pay rent. a few years later, the
priors sent money on repairs in their home believing they had a right to remain as long as they wanted.
But after 5y, sahota relied on the written lease they signed and brought possession proceedings to take it back.
The court found that a proprietory estoppel had arisen in favor the priors and Sahota’s claim failed.
There was not claim that there was a constructive trust in favour of the priors but the court rejected the
argument made by sahota that S2 prevented an estoppel based on an oral agreement.

CM 9 – 7/3/2024

B) Effects of the contract

The Doctrine of Anticipation (”equity regards as done what ought to be done”)

Case of Wash v Lonsdale [1882] LR 21 CG D 9

Facts: L. was under a contractual duty to grant a lease to Walsh. W. acquired an immediate interest in equity in
the land (=called an EQUITABLE LEASE) mirrored the lease that L. had promise to grand W.; so the term of the
promise lease was...
this applies whenever ... : rather or not L. duty arose under a contract

Ex :
A court order A to transfer to B
B the purchaser acquires from the moment the court had taken this order
If B show that the seller A is under a contractual duty to give to B an interest land, than B must show that Section
2 had been met. The doctrine can regulate the effect of a contract but it does not permit the contract to be
avoided.

EX of the doctrine :
contract : A owes the delivery ; B: owes to A the money
but right in equity arise in the min time (btw the time of not signing yet the contract). When the doctrine applies
the purchaser B acquire,

The doctrine can regulate the effects of the contract but does not allow the requirement for such a contract to
be avoided

If the duty of the seller is to grant a lease >> equitable lease

If the duty of the seller is to grant an easement >> equitable easement
And this easement will be legal when the contract will be completed

When the doctrine applies, the purchaser who acquired an equitable interest in the sale of land and so the lease
binds any party (?)

Also protect the seller from the purchaser insolvency

= u have aright in equity and claim for damages
Doctrine : protection for the seller and purchaser

Ø Does that mean that the owner of an equitable right have a power to transfer his/her property rights to
others?

Ex : I brought u a house, when the C is still not completed > I sell it to someone else meanwhile (don’t even have
yet the legal property)
As an equitable interest, the purchaser’s rights is capable of binding a 3rd party

NO !! Scott v Southern Pacific Mortgages Ltd [2015] AC 385

Q° whether an equitable interest held by the purchaser under a contractual sale / allowed the purchaser before
the completion of the Contract itself to create property rights in others ?

Misses Scott wished to show that as a result of proprietary estoppel operating against the purchaser she had
acquired an equitable interest derived from the purchaser’s interest that was capable of biding a mortgagee (the
3rd part) but to bind the mortgagee she had to show that she acquired a proprietary right before the sale to the
purchaser was completed
She therefore argued that her proprietary right in the land arose as soon as the purchaser acquired the propriety
interest under the C of sale to the purchaser

The Supreme court held that miss Scott did not acquired such a proprietary interest, her claiming (?) against the
purchaser could give her a proprietary right only at the later point when the sale contract was completed

Btw the time of “contract” and “contract completed” : u have not yet give the money to the sellor but u have
someone interested in ur house and who wants to buy it for 20% more of the price in the initial C = won’t let the
opportunity go away = u have not yet the legal property but u r signing a contract of sale with this other
purchaser
= u the mortgagee before being bound by the 2nd contract have to wait for the completion of the 1st contract

Stage of Completion
A) The completion by transfer or grant
When a contract for sale is created, it is completed by each side completing their duties ( give the money and
give the land/house)
WHEN the seller has promised to grant the purchaser a legal interest or estate, the seller must take steps to
make that disposition to the purchaser

When the contract is executed, no q° of compliance with section 2 can be raised (only applies to executory and
not executed contract)

The transfer of legal rights requires the execution of a deed and this is provided by: Law of Property Act 1925
What is a deed ?
= equivalent of un acte notariat

• Effect #1 of the completion: the nature of the purchaser’s equitable interest changes on completion.
As soon as the C is completed u do not have an equitable lease but a legal lease

Jerome v Kelly [2004] 1 WLR 1409

In this case the judge said:
“the equitable interest can be viewed as passing to the buyer in stages, as title is made and accepted and as the
purchaser price is paid in full” (Lord Walker).

• Effect #2 of the completion: the equitable interest of the purchaser is not such as to give him/her a
general power to create property rights to others.

B) The requirement of a deed

Law of Property (Miscellaneous Provisions) Act 1989

When the seller sells registered estate to the purchaser, the seller completes by executing a TR1 form: this count
as a deed and the form is required to allow the purchaser to apply to be the legal owner
The deed has to be signed to the pleasance of a witness who then signed the deed himself (even a neighbour)
This requirement is not met if the witness was not present when the parties executing the deed signed it, u can’t
be a remote witness : u have to be physically here
= still applies when parties sign electronically

This will be immediate if the document specifies that it is “signed and delivered as a deed”

https://www.barbri.com/sqe/

Part 5 –Adverse Possession

JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419

Concerned a successoral claim to valuable development of land of which the company Pye was a registered
owner. The company had a land and this land has been acquired by possession by Mr and Mrs graham

Following the lost of the land the company brought an action against the UK arguing that English law in adverse
possession was in contrary with the European convention and it should receive financial compensation > Their
claim was rejected

“A thing which you have enjoyed and used as your own for a long time (...) takes root in your being and cannot be
torn away without you resenting the act and trying to defend yourself, however you came by it”.

Holmes, in The Path of the Law (1897)

3 reasons for adverse possession to exist in English law (according to Dockray):

Ø To protect defendants from ‘stale’ claims (poor claims)

Ø To encourage plaintiffs not to sleep on their rights
Ø To ensure that a person may feel confident, after the lapse of a given period of time, that an incident
which might have led to a claim against him is finally closed.

Property legislation tends to eschew references to squatters and squatting which is used in criminal legislation
The term squatter applies to those in unauthorized occupation of land
Ex: demonstrators may be temporary squatters, the English law if adverse possession came under a close
scrutiny

Adverse possession, sometimes colloquially described as "squatter's rights",[a] is a legal principle in the Anglo-
American common law under which a person who does not have legal title to a piece of property—usually land
(real property)—may acquire legal ownership based on continuous possession or occupation of the property
without the permission (licence) of its legal owner.[
 I. Inception of adverse possession (la naissance)

PO: paper owner

The key date to identify is the date at which a causal faction a cruise against a peer… (?)
the key date: the date at which a cause of faction acrews ...
In unregistered land that is the date from which the limitation period begin to run the one that interest us : in
registered land: that is the date from which the pers is treated as being an adverse possession. (§1 and §8) it
must be demonstrated:
dispossession of the PO
its discontinuance in possession: showing that the claimant has moved into an adverse possession when this
possession

CM 10: 14/03/2024

The difference btw both:

In dispossession: u r not abandoning the house, just someone is squatting

è Elements composing Adverse Possession

- Adverse: u do not have the permission from the paper owner to stay in the property
Can be adverse even if he holds registered title
- Possession:
Showed or express to intention to possess / if u r just a random squatter > dispossession does not work but if u
change the heating process u r acting like the owner = possession

ADVERSE possession: Lack of permission from the paper owner

No adverse possession if the possessor is present with the license of the paper owner (PO).

BP Properties Ltd v Buckler [1988] 55 P & CR 337

Facts: the appellant parents had been in adverse possession of their home and how? they remained in
occupation at the end of their legal lease in 1955
( u pay a rent > u have a legal lease > at the end of it u stay in the home > beginning of adverse possession)
On order possession (when the PO is claiming his property) was obtained by the landowner within the limitation
period but hat order in possession was not enforced
Pb here : this order possession (OP) was not enforced
Then the company, the PO purchased the freehold and the company wrote to the adverse possessors and in the
letter the company was saying to the couple “u can remain in the property and u do not have to pay any rent”
Misses Buckler did not respond : nor accepted nor rejected
When she died, her son wanted to establish that his parents had acquired a title by adverse possession

è Court said:

“The rule that possession is not adverse it it can be referred to a lawful title applies even if the person in
possession did not know of the lawful title; the lawful title would still preclude the person with the paper title
from evicting the person in possession. So far as Mrs Buckler was concerned, even though she did not ‘accept’ the
terms of the letters, BP Properties would, in the absence of any repudiation by her of the 2 letters, have been
found to treat her as in possession as licensee on the terms of the letters. They could not have evicted her (if they
could have done so at all) without determining the licence”.

>> It is sufficient that permission is given unilaterally.

Issue to decide whether the letter interrupted the adverse possession

And according to the court the letter was a license even though the bucklers have never replied, can’t be
requalified as a contract bc u have to comply with S2 (consent of both parties) and conditions of S2 are not met
but it can be requalified as a license which is unilateral

One legal strategy to avoid someone acquiring law title of ur house by AP : send him a letter ot allow him to
squat the house -> he becomes a regular possessor of ur house, u interrupt him the time for him to in 10 years
ask for AP
One legal way to stop someone from claiming AP over ur house

ADVERSE possession: Possession can be adverse, even if the possessor

holds registered title
• Parshall v Hackney [2013] EWCA Civ 240

Adverse possession

Facts: u had a strip of land which was a place to park ur car > mistakenly registered under 2 different titles
(mistake by the land registrar)
The owner of the title n° 31 had been in possession of the strip and claimed adverse possession

“Possession is never ‘adverse’ within the meaning of the Act of 1980 if it enjoyed under a lawful title. If, therefore,
a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly
determined, he cannot be treated as having been in ‘adverse possession’ as against the owner with the paper
title”.
The only fact that the land is registered goes against adverse possession

Court found as inclusion of the land in title 31, a claim on AP based on the fact that u legally owned the title
won’t allow u to claim the title in AP
Here u have 2 legal owners which is impossible : the 29 was registered before and so he is currently the true
paper owner of the trip of land and 31 can only claim for damages (value of the land+ compensation if loss of
value of property bc u never had been the real owner of the house + he should not have paid this price = can ask
for 4 things to get compensation for)
>> Possession is adverse ONLY if it is possession with permission of the PO.

• Nasrullah v Rashid [2018] EWCA Civ 2685

Adverse possession

FACTS: Mohamed legal owner of a house in Birmingham and a fraudster with the same name frauded the doc
when he was abroad and became the registered owner in place of the true Mohamed rashid
Then the fraudster transferred the legal title to his son Farakh as a gift
He went into occupation of the land (Farakh) and then granted out until 1980 to 2013
In 2013 the true Mohamed applied for rectification of the registrar to reinstate his legal title

It was held that under the rules set in the land registration land 2002 that the registrar should be changed to
reinstate the true Mohamed Rashid title
The CA disagreed with this 1st instance and state that the register should not be changed as Farakh, the son of
the fake had prove 12 years of Adverse possession and then acquired the legal title (before 2002: 12 years)

“if Mohammed Rashid had remained the registered proprietor and Mohammed Rashid (the fraudster) and
subsequently his son Farakh Rashid had simply taken possession of the property, Farakh Rashid would now be
entitled to be registered as proprietor in place of Mohammed Rashid”.

è As for the elements of the AP (factual possession and intention to possess):

Adverse POSSESSION: Factual possession (1/2)

• JA Pye (Oxford) Ltd v Graham [2003]

“There are 2 elements necessary for legal possession:

(1) A sufficient degree of physical custody and control (factual possession)
(2) An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to
possess)”.
= these elements are cumulative conditions

• Powell v McFarlane [1977] 38 P&CR 452

“Factual possession signifies an appropriate degree of physical control.

It must be single and exclusive possession, though there can be a single possession exercised by or on behalf of
several persons jointly (...) The question what acts constitute a sufficient degree of exclusive physical control must
depend on the circumstances, in particular the nature of the land and the manner in which the land of that
nature is commonly used or enjoyed”.

For a practical case: U have to look at the facts and sees how the squatters use the land
= very factual, no legal element
If that happen for the exam use at the facts and use each single facts to prove if there is or there is not factual
possession

Adverse POSSESSION : Factual possession (2/2)

• Thorpe v Franck [2019] EWCA Civ 150

The possessor decided to pay the area in front of the bungalow

Paving an open area in front of a bungalow: sufficient to establish adverse possession.

“in considering whether the alleged possessor has been dealing with the land as an occupying owner might have
been expected to deal with it, the nature of the land in question is very important”.

• Roberts v Swangrove Estates Ltd [2007] 2 P&CR 17

“a squatter who has occupied a terraced house, has lived in it and has denied access through its doors other than
to his visitors, he would, no doubt, be taken to have had possession of the whole house notwithstanding that he
failed to prove he had occupied a back room on the top floor”.
He had acquired adverse possession of the whole house

• Ramroop (Samson) v Ishmael and Heerasingh [2010] UKPC 14

“part of the building was capable of being possessed by the claimant to the exclusion of others”.
In this case the pricy council accepted that a claim for AP follows the logic from the facts that the land can be
held horizontally
The only thing that the possessor has to prove: part of the building was capable of being possessed by the
claimant to the exclusion of others

Adverse POSSESSION: Intention to possess

• Buckingham County Council v Moran [1990] Ch 623

Intention to possess ≠intention to own

Country Council had acquired the disputed land for future use
The land adjoined the claimant garden and he used the land as an extension of his garden and the only accept of
that land was by a gate on which the claimant put a lock
The claimant considered that he would have been obliged to leave the land if it was required for the land
This specific statement made by the client could have defeated an intention to own the land but it did not
preclude the claimant demonstrating that he intended to possess the land

Necessary to prove that u intended to exclude the world as large (everyone) including the paper own and it was
clearly stated in that case:

• Powell v McFarlane [1977] 38 P&CR 452

“What is really meant, in my judgment, is that, the animus possidendi (the intention to possess) involves the
intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the
paper title (...) so far as it is reasonably practicable and so far as the processes of the law will allow”.

Instances:
• Purbrick v London Borough of Hackney[2003]EWHC1871
• Topplan Estates v Townley [2004] EWCA Civ 1369
• Leigh v Jack [1879] 5 Ex D 264

CM 11

è Cours rattrapé avec le powerpoint

Part 6 –Town and Village Greens

Town and Village Greens
= the concept allows the public to become owner of a land

COMMONS ACT 2006

Ø There is different classes of greens : classes a, b and c.

- Classes a & b disappeared with the Commons Registration Act 1965.

- Class c was created by the same Act of Parliament.

Ø There are 6 cumulative conditions for a land to be claimed as a green:

1. On the land
2. A significative number of inhabitants
3. Of any locality or of any neighbourhood within a locality
4. Use as ‘of right’
• Usage nec vi, nec clam, nec precario
• Exclusion of belief
• Exclusion of deference
5. Sports and pastimes
6. For at least 20 years
è #1 On the land

Not a small plot of a land: the whole land.

In Oxfordshire County Council v Oxford City Council and Robinson, House of Lords, 24 May 2006 :

“a piece of public or common grassy land (village green)”.

è #2 A significative number of inhabitants

In R (Alfred McAlpine Homes Ltd) v Staffordshire County Council, Administrative Court, 17 January 2002
« it is in general use by the local community for informal recreation, rather than occasional use by individuals as
trespassers »

è #3 Of any locality or of any neighbourhood within a locality

In R (on the application of Cheltenham Builders Ltd) v South Gloucestershire DC, Administrative Court, 10 Nov.
2003 : a « sufficiently cohesive entity »

è #4 Use as ‘of right’

Here, it means « as if they have the right ».

• Use nec vi, nec clam, nec precario: without force (ie destroying the gate), without secrecy (ie gathering

at night), without authorization (ie . R v Oxfordshire County Council, ex parte Sunningwell Parish Council

[2010], Supreme Court, 3 March 2010)

• Exclusion of deference :
Lord Walker of Gestingthorpe: “I have great difficulty in seeing how a reasonable owner would have
concluded that the residents were not asserting a right to take recreation on the disputed land, simply
because they normally showed civility (or, in the inspector’s word, deference)”
R (Kevin Lewis) v Redcar & Cleveland Borough Council, Supreme Court, 3 March 2010

è #5 Lawful Sports and pastimes

• It includes a large bunch of activities such as :

picking blackberries,
dog-walking
playing with children
using kites or toboggans,
archery
the ritual May Day dance celebrated every May 1st.

è #6 For at least 20 years

• It does not necessarily require to be consecutive 20 years.

Example: certain lands were closed during the foot-and-mouth disease (fièvre aphteuse): it did interrupt
the use of a land for a period of time but it did not reset the already cumulated amount of time.
• Even if the land is physically usable only for regular short periods.
Example: Newhaven Port and Properties Ltd v East Sussex County Council [2013] EWCA Civ 276
It was the case of a tidal beach. Because of the tides, none of the land was available 48% of time.

è Registration of Town and Village Greens

Once the conditions have been gathered, the green needs to be registered.
Registration on a special local register before the local Council.

Ø What is registered?

• The use of the land and not the activities

It means that once the green is registered, the inhabitants can make different uses within “sports and
pastimes”.
Ex: If they used it to play cricket, they can then use it later to picnic.

Ø What are the effects of registration?

• Legal existence of a “droit de propriété” of a use (of a land by inhabitants)

• Immunity from urban growth
« Disparaging references are sometimes made to the “village green industry” and to applications for registration
being used as a weapon of guerrilla warfare against development of open land ».
In R (Kevin Lewis) v Redcar & Cleveland Borough Council, Supreme Court, 3 March 2010
• inalienability : the inhabitants cannot sell, rent or mortgage the land.