Skip to main content
main-content
Top

About this book

This textbook is an ambitious and engaging introduction to the more advanced writings on land law, primarily designed to allow students to ‘get under the skin’ of the topic and begin to build their critical thinking and analysis skills. Each chapter is structured around key questions and debates that provoke deeper thought and, ultimately, a clearer understanding.

The aim of the book is therefore not to present a complete overview of theoretical issues in land law, but rather to illustrate the current debates which are currently going on among those working in shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

Table of Contents

1. Themes of Property

Abstract
Books on land law sometimes begin with a discussion around the question: what is land? There are various ways these discussions can be structured, incorporating some or all of the following (and, no doubt, others): students are usually served up the ‘bundle of rights’ theory, best exemplified by Honoré’s classic argument that, rather than focus on the thing itself (that is, land), land law is focused on various rights in the thing and responsibilities which derive from one’s ownership of the thing.1 Students may also be served up the ‘thin air’ argument which broadly, and slightly more contextually, asks us to think about the relationships between people and space. Again, commonly but perhaps with less sophistication, we are enjoined to think about the difference between property and personal rights by reference to the ineffable characteristic of property rights (that they bind third parties). Land law then becomes a definitional struggle between property and the personal.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

2. Tenure and Estates

Abstract
If all property is theft, then the doctrines of tenure and estates are a double theft. Not only do they legitimate (and define) the ownership of land as well as rights over it, but they also de-naturalize the law from experience. That is the great debate with which this chapter engages.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

3. The 1925 Legislation

Abstract
There is no clearer illustration of the themes discussed in Chapter 1, or of the tensions that have shaped the development of English land law in the twentieth and twenty-first centuries, than the great debates that informed the 1925 legislation.1 In 1925, a set of legislation was introduced in England and Wales that reshaped the system of land law and created the structural framework that governed landownership and transfer until the introduction of the Land Registration Act 2002. Although most of the central concepts of property law are common law-based, the ‘Englishness’ of English land law is often identified by reference to this 1925 legislation, a collection of statutes which sought to modernize and simplify conveyancing, with the explicit objective of making land a more marketable commodity. Although this system has been moulded and shaped since it came into effect on 1 January 1926, to meet the changing political, economic and social demands made of the English land law system, a striking and enduring feature of English land law is the lasting impact of the ‘property values’ embedded in the 1925 legislation (certainty, simplicity, alienability) on contemporary doctrine and decision making.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

4. Leases

Abstract
In the previous chapter, we discussed some of the issues arising from co-ownership of property. In this chapter, we deal with a set of issues deriving from a different type of property right — the lease, also known as a tenancy. Part of the consideration here is about the dividing line between property and personal rights, to be sure, but the relationships created out of, or because of, a tenancy agreement are just as significant to our discussion. The themes outlined in Chapter 1 are equally relevant here, but the key theme here is legal rationality. The law puts to one side what the parties think they are doing and, instead, by law’s own logic, provides an ‘objective’ solution that is rather different from what the parties thought they were doing. A whole set of sub-disciplines have been formed around this logic (landlord and tenant law; housing law).
David Cowan, Lorna Fox O’Mahony, Neil Cobb

5. Land Registration

Abstract
A central feature of modern English land law is the emphasis placed on registration of title (or, more accurately following the Land Registration Act 2002, title by registration) as the definitive authority on the validity and priority of competing interests in registered land. The development of a practice of land registration was one of the key aims of the 1925 legislation (see Chapter 3), although earlier iterations of the system of registered land dated back to the late 1800s. In 1857 the Royal Commission on Registration of Title proposed a system of registration based around a central registry in London with district offices, and the Land Registration Act 1862 provided for the registration of freehold estates in land. The system of registration adopted in England had its origins in a system that had been piloted in South Australia by then Prime Minister of South Australia, Sir Robert Torrens. This model became known as ‘Torrens-style’ registration and was subsequently adopted in many countries around the world. In this chapter, we address five great debates about land registration which broadly relate to (1) the relationship between mapping land and title; (2) the definitiveness of the register; (3) whether the bureaucratization of land is necessary and justified in the interests of efficiency (and, latterly in England and Wales, the prospect of a shift to e-conveyancing); (4) the dominance of rational, abstract ways of valuing land over material possession of land; and (5) the practical changes resulting from the philosophical shift from registration of title to title by registration.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

6. Unlawful Occupation of Land: Squatting and Adverse Possession

Abstract
The philosophy and policies of the Land Registration Act 2002 — considered in the previous chapter — are sharpened by the issues surrounding the unlawful use of land by ‘squatters’. Squatting can be described as the unauthorized occupation of land belonging to another, and ‘a squatter … [as] one who, without colour of right, enters on an unoccupied house or land, intending to stay there as long as he can’.1 When such unlawful occupation extended over a sufficiently long period of time (in England and Wales, 12 years),2 the traditional doctrine of adverse possession enabled such an occupier — through a combination of the limitation principle (which extinguished the displaced owner’s right to bring an action to recover the land after 12 years)3 and the doctrine of relativity of title (by which law protects the relatively stronger claim in any bilateral contest) — to acquire a status of irremovability when it came to defending their occupation of the land. Furthermore, in unregistered land — where possession provides the root of title — the squatter was the holder of a new common law estate in the land derived from her own possession; while in registered land — prior to the LRA 2002 — the squatter acquired beneficial ownership of the property automatically, under a statutory trust, and completion of the legal title to the land (by closing the registered proprietor’s title and opening a new title held by the squatter)4 was simply a matter of making an application to the Land Registry.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

7. Third-Party Interests in the Use and Control of Land

Abstract
This chapter focuses on two categories of burden on land: easements (obligations that benefit and burden two separate pieces of land) and restrictive freehold and commonhold covenants (promises restricting the use of freehold land). Our approach in this chapter reflects our view that these private law obligations cannot be fully understood without also considering the broader context of public law obligations that relate to the use of land. Consequently, this chapter explores the nature and development of easements and restrictive covenants in the context of the social, economic and political arguments for permitting third parties to control use of land by private owners, as well as the control and regulation of land use as a public function.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

8. Human Rights and Property Law

Abstract
Other chapters in this book have briefly mentioned human rights — in relation to the mortgagee’s right to possession, the doctrine of overreaching, and the landlord’s right to possession of the occupied property. This chapter faces the issue head on. The great debate which raged during the Noughties, and partly resolved as that decade ended, was the extent to which property rights and human rights intersect and interact. Although this chapter could range widely, its focus is on two elements: mandatory rights to possession (Debate 1); and peaceful enjoyment of possessions (Debate 2). The former concerns Article 8 of the European Convention on Human Rights (given effect in Schedule 1, Human Rights Act 1998 (HRA)); the latter concerns Article 1, First Protocol, ECHR (1998 Act, sch. 1 (A1P1)).
David Cowan, Lorna Fox O’Mahony, Neil Cobb

9. Law, Equality and Housing

Abstract
In the previous chapter we explored the often complex interaction between the principles of the European Convention on Human Rights, the Human Rights Act 1998 and land law. Here, we build on this discussion by considering the relationship between property interests — especially access to housing — and ‘equalities law’, or the specific statutory protections against unlawful discrimination found in the Equalities Act 2010, which together form a further aspect of the UK’s human rights framework.1
David Cowan, Lorna Fox O’Mahony, Neil Cobb

10. Mortgages and Security Interests in Land

Abstract
One of the most familiar land transactions within the popular consciousness — and the most crucial for anyone who has bought their home with the support of a bank or building society loan — is the mortgage. From their origins as the last refuge of the necessitous borrower under the shadow of usury laws, mortgages evolved to become the enabler of capital investment to support industry and commerce from the Industrial Revolution. Indeed, it was only well into the twentieth century, when much of the mortgage law we would recognize today was well established, that the domestic mortgage emerged as a routine instrument by which building societies enabled the growth of owner-occupation in the UK. Today, alongside their commercial functions, mortgages are the bread-and-butter transactions which have enabled over 70 per cent of the UK’s population to become homeowners.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

11. Cohabitation: Rights to the Home

Abstract
Nowhere in land law is the tension between the theme of rationality and the emotional dimensions of property more exposed than in the question of whether a non-owning cohabitant is entitled to a share of (or interest in) their co-lived property; and, if so, the quantification of that share or interest. Those are the fundamental debates tackled in this chapter, which focuses on the rights of cohabitants in their homes.1 They are in many ways the Great Debates of our time, masking doctrinal, procedural, political and broad socio-legal issues.2 Those issues highlight the problematic nature of land law’s rational search for intention when the parties themselves may not have expressed it. The first flush of love leads people to do extraordinary things without thought; it is only when, inevitably, that love turns to bitterness and hatred, or, more mundanely, the cohabitants part company, that the issues for land law arise. It is at that latter point, the bitter end, that land law requires the re-construction — or, perhaps, the better word is translation — of events around the tools it provides: the constructive trust and proprietary estoppel.
David Cowan, Lorna Fox O’Mahony, Neil Cobb

12. Conclusions: What is the Point of Property?

Abstract
We have spent some time in this book identifying some of the flaws in the conventional law of property, in particular through the lens of the six themes of property identified in Chapter 1: alienation, citizenship, exclusion, rationality, responsibility and space. In this conclusion, we reflect on our journey by way of extended observations on the limits of property in law. We do not seek to repeat our call to arms in the introduction here, and nor is what follows a manifesto or suchlike; what we offer here are merely some personal observations to which we collectively mostly sign up.
David Cowan, Lorna Fox O’Mahony, Neil Cobb
Additional information