Introduction to Land Law
Land Law, often referred to as the law of real property, deals with the ownership, rights, and interests associated with land. It encompasses a range of legal principles concerning the creation, transfer, operation, and termination of these rights. Unlike contractual rights, which primarily affect the parties involved in the contract, land law rights, known as proprietary rights, are capable of affecting third parties.
Definition of Land under LPA 1925, s.205
The Law of Property Act 1925, section 205, defines land as including:
• Any tenure (the manner in which land is held),
• Mines and minerals, whether or not separated from the surface,
• Buildings or parts of buildings, regardless of how they are divided (horizontally, vertically, or otherwise),
• Other corporeal hereditaments (physical items inheritable by heirs).
This definition highlights several key aspects:
• Immovability: Land is not moveable.
• Comprehensiveness: It includes what is above, below, and on its surface.
• Permanence: Anything permanently fixed to the land is considered part of it.
Divisibility of Land
Land is divisible both physically and temporally:
• Physical Divisibility: Land can be physically split into separate parts.
• Temporal Divisibility: Rights in land can be divided over time (e.g., a lease for a certain period).
Distinction from Contractual Rights
Although land rights are often created and transferred through contracts (e.g., a mortgage, which is a contract of debt secured by land), they differ significantly from purely contractual rights. The key distinction lies in the fact that land law rights can affect third parties, not just the individuals who originally entered into the contract.
Proprietary Rights vs. Personal Rights
A fundamental concept in land law is the distinction between proprietary rights (rights in land that can bind third parties) and personal rights (rights that only affect the parties involved in the agreement).
The case of National Provincial Bank v Ainsworth (1965) serves as a pivotal starting point for determining whether a right possesses a proprietary character.
Lord Wilberforce's Fourfold Test
In this case, Lord Wilberforce outlined a fourfold test to establish whether a right constitutes an interest in land:
1. Definability: The right must be clearly defined.
2. Identifiability by third parties: The right must be recognisable by others, not just the parties involved.
3. Assumability by third parties: The right must be capable of being assumed by third parties.
4. Permanence and Stability: The right must exhibit some degree of permanence and stability.
These criteria, although open-ended, are essential in assessing whether a right is proprietary in nature.
The Circularity of Proprietary Rights
An inherent challenge in identifying proprietary rights is the circularity of the reasoning: A right can only be assumed by third parties if it is already considered proprietary. In other words, it must have the potential to affect individuals who did not originally create or agree to the right.
By understanding these principles, one can begin to grasp the complexities of land law, which extends beyond simple ownership to encompass a rich tapestry of rights and interests that can impact various parties over time.