English land law concerns the law of real property in England and Wales. Because of its heavy historical and social significance, land is a major part of the wider English property law.
The principal rules of land law derive from the common law, equitable principle, the Law of Property Act 1925, the Land Registration Act 2002, the Land Charges Act 1972, the Trusts of Land and Appointment of Trustees Act 1996, and the Settled Land Act 1925.
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| English Feudalism |
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Harold Sacramentum Fecit Willelmo Duci
(Harold makes an oath to Duke William) King Harold becomes the vassal of Duke William of Normandy (Bayeux Tapestry) |
| Fee |
| Overlord, Vassal |
| Enfeoffment |
| Subinfeudation |
| Feoffee |
| Feudal land tenure |
| Fealty, Homage |
| Feudalism in England |
| Feudalism |
The Law of Property Act 1925, s. 205(1)(ix) states:
The Act goes on to define "mines and minerals" as "any strate or seam of minerals or substances in or under any land, and powers of working and getting the same". It goes on further to define a "hereditament" as "any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir".
The legal maxim is cuius est solum eius est usque ad coelum et ad inferos, which is Latin for "he who owns the land owns everything up to the heavens and down to the depths."
Since the 13th century this has been complicated by flying freeholds, the right of aircraft to fly over a property (Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479), the Crown's claim on certain resources and mineral rights (Case of Mines (1568) 1 Plowd 210, Coal Industry Act 1994, Petroleum Act 1998) and treasure (Treasure Act 1996). Nevertheless, cases such as Kelsen v. Imperial Tobacco Co. Ltd. [1957] 2 QB 334 and Laiquat v. Majid [2005] EWHC 1305 illustrate that the courts generally support the freeholder's right to control things that overhang or underlie the ground he holds.
The legal maxim is quicquid plantatur solo, solo cedit, which is Latin for "that which is fixed to the land becomes part of it".
Holland v. Hodgson [1872] LR 7 CP 328 explored this. The context was the question of whether looms installed in a factory formed part of the land. Blackburn J said that an object resting on the ground and "attached" to it only by its weight will not normally be part of the land, but it is relevant to ask what was intended. So, for example, a pile of stones in a field is not part of the land, but if the stones are arranged into a dry stone wall then the wall has become a part of it.
In Botham v. TSB Plc [1997] 73 P & CR D 1, it was decided at appeal that things easily removed, such as curtains and carpets, are not part of the land, but things not easily removed, such as taps and plugs, are.
In Chelsea Yacht and Boat Club v Pope [2001] 2 All ER 409, it was held that a houseboat does not form part of the land because it is insufficiently fixed.
In the law of England and Wales, land may lie under water, but the water does not necessarily form part of the land.[1] The Land Registration Act 2002, s.132 (1)(b) says that "land" includes land covered with water. For most practical purposes, water may be used by the person owning the land on which it is, but there are restrictions on some activities, such as large-scale abstractions of water or activities which may pollute it (see, for example, the Water Resources Act 1991). Tidal waters are treated differently. They generally belong to the Crown or to a local authority, and the public has the right to pass over tidal waters and to fish in them.
Technically, only the monarch can own land and therefore all land in England and Wales belongs to the Crown. What subject can own is an estate. This is held via a system called tenure. The usual forms of estate are the freehold interest in a property ("in fee simple") and the leasehold interest in it ("for a term of years certain"). In practice, ownership of an estate is often loosely described as "owning land".[2][3]
Co-ownership arises when tenure is held by more than one person, such as a husband and wife. There are two kinds of co-ownership: joint tenancy, where two parties own a property together, and tenancy in common, where each party owns a share in a property. An important difference is that with a joint tenancy, when one dies, title to the property passes to the surviving joint tenants, whereas with a tenancy in common, where one dies, his share becomes part of the assets disposed of according to his will or the rules of intestacy. This may mean the property has to be sold, unless the surviving tenants in common can afford to pay the value of his share to his beneficiaries.[4]
Since Law of Property Act 1925 came into force, it has not been possible to create a tenancy in common in law. However, tenancies in common can still be created in equity, or behind a trust. This may arise if, for example, a married couple divorces.[5][6]
In English land law, "settlement" and "trust" mean the same thing. A common term is "settlements of land", which means "trusts over land".[7]
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"Mortgage" is often loosely used to mean a large loan secured on land. Strictly, this is not correct. What the lender gives to the borrower is a loan; a mortgage used to be what the borrower gives to the lender in return for the loan. Since the Law of Property Act 1925 came into force, what the borrower gives to the lender is a charge, but the old-fashioned terms "mortgage", "mortgagor" (which means the borrower) and "mortgagee" (which means the lender) are still in widespread use.[8]
In this arrangement, the borrower or mortgagor has certain rights: the right to redeem the loan, the right to the equity (which is the difference between the property's value and the amount of any mortgage secured on it), the right to grant leases or subleases, and the right to sue. The lender or mortgagee also has rights: the right to hold the title deeds (which only applies to the first or main lender), the right to possession of the property (which is not normally exercisable unless the borrower falls behind with the payments), the right to insure the property at the borrower's expense, the right to grant leases if it has taken possession of the property, the right to tack further advances, and the right to consolidate if the borrower owes it two or more sums secured on the same property.[9]
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An easement is a legal right that a landowner can exercise over a neighbour's property. Danckwerts J set out the four rules about easements in Re Ellenborough Park [1955] EWCA Civ 4:
The dominant tenement is the one enjoying a right. The servient tenement is the one over which the right is enjoyed, and the easement is the right itself. So for example, if a drain runs out from 1 Acacia Avenue, under the boundaries of 2 Acacia Avenue, and then out into the main under the street, then 1 Acacian Avenue will be the dominant tenement, 2 Acacia Avenue will be the servient one, and the easement will be one of drainage.[10][11]
The rule about accommodating the dominant tenement means that the easement must confer an advantage on a specific property. It is not possible to have an easement for the benefit of a specific person, only for the benefit of the owner of a specific property. The rule about lying in grant means that the easement must be a right that could be granted by deed.[12]
Common examples of easements include rights of way, rights to light, the passage of a water pipe or drain, or the right to support from a property that lies beneath.[13]
A profit a prendre is the right to take something from another person's land. Common examples are the profit of pasture which is the right to graze animals, the profit of pescary which is the right to take fish, the profit of turbary which is the right to cut turf or peat, and the profit of estovers which is the right to take wood. Profits a prendre differ from easements in that they can belong to a person rather than a property.[14]
Authorities, companies or utilities sometimes use a power or right to route something through someone else's land. This usually relates to pipes or cables. Where there is a deed of grant from a landowner, the resulting right is an easement as described above. In the absence of a deed of grant, the rights the authority, company or utility has are collectively called a wayleave.[15]
The creation of a wayleave should results in payments to the landowner, because a wayleave does not amount to confiscation of land (West Midlands Joint Electricity Authority v Pitt [1932] K.B.1). The landowner is entitled to compensation for loss or damage, which is often a lump sum, plus a consideration, which is often an annual payment.[16]
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Adverse possession occurs where a party occupies another party's land as a squatter and remains in possession for twelve years. The squatter must show that:
The squatter must not have deceived or defrauded the owner, and under the Land Registration Act 2002, there are additional conditions if the land has been registered.
"Possession" of the land must be exclusive and intentional. In Powell v McFarlane [1970] 38 P&CR 352, Slade J set out these principles. On possession:
On the intention to possess:
There needs to be evidence of the intention to possess, such as placing a fence around the land and locking any gates in the fence. A squatter's statements about his intentions are not usually sufficient.[17]
"Adverse" means that the squatter must have taken possession as a squatter. If he has taken possession with the owner's consent, or acknowledged the other party's ownership, then the possession is not adverse. So for example, if the purported squatter has paid rent to the owner, or entered into negotiations to purchase or rent the land, then the possession at that time is not "adverse". The possession must be such that the owner cannot access the land.[18]
If the land has not been registered, then the steps noted above are not sufficient to obtain adverse possession. Instead, they suffice for the squatter to apply to the Land Registry to have the land registered in his name. The Registrar will then give notice of the application to the registered owner. If the registered owner agrees or is silent, then possession will normally be granted, but if he objects then the application will normally be refused. (There are exceptions for estoppel, or if the applicant has some other right to the land, or in the case of a reasonable mistake about boundaries.)[19]
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