modern law of real property · e law of property act 1922. assimilation of real and personal...
TRANSCRIPT
CHESHIRE AND BURN'S
MODERN LAW OF REAL PROPERTY
Eighteenth Edition
E H BURN BCL, MA Barrister and Honorary Bencher of Lincoln's Inn
Emeritus Student of Christ Church, Oxford Formerly Professor of Law in The City University
J WRIGHT MA Solicitor
Student and Tutor in Law, Christ Church, Oxford Professor Law of Contract, University of Oxford
Professor of Anglo-American Private Law, University of Leiden
OXFORD U N I V E R S I T Y PRESS
CONTENTS
Preface xix
Table of Statutes xxiii
Table of Statutory Instruments
Table of Cases
Abbreviations
PART I I N T R O D U C T I O N
1 AN INTRODUCTION TO LAND LAW 3
I Property Rights 4
A Property Rights and Personal Rights 4
B Third Parties and Property Rights 4
II Real Property 5
III The Meaning of Land 6
A Distinction between Corporeal and Incorporeal Hereditaments 7
B Fixtures 8
IV Development of Modern Land Law 12
A Feudal Basis Law. Tenures and Estates 12
B The Significance of Possession within the Land Law
C Common and Equity 14
D Legislative Reforms of Nineteenth Century and the
Impetus to the Reforms
E Law of Property Act 1922. Assimilation of Real and Personal Property
F Legislation 1925. Consolidating Acts 18
G Further Developments in 1996 and 2002 19
V Oudine of Rights in Land and their Creation and Transfer 20
A Estates and Interests in Land 20
B Creation of Estates and Interests 21
C Transfer Estates and Interests 21
VI Land Law and Human Rights 22
PART II T H E M O D E R N LAW IN H I S T O R I C A L C O N T E X T
A ORIGINS OF THE MODERN LAW 27
2 THE COMMON LAW SYSTEM 29
I The Doctrine of Tenure 29
A Feudalism in Europe 29
CONTENTS
B Feudalism in England 32
C Forms of Tenure 36
II The Doctrine of the Estate 48
A Seisin. Possession not Ownership 48
B Features of the Doctrine of the Estate 52
C Leasehold Interest. of Years 57
D Classification of Property 59
3 MODIFICATION OF THE COMMON LAW BY EQUITY 61
I Disadvantages Incidental to the Common Law Tenures 62
A Conveyances were Required to be Public and Formal 62
B Types of Interests were Strictly Limited 63
C A Tenant at Common Law could not Devise his Freehold Estate 63
D A Tenant at Common Law was Liable to
Certain Onerous Feudal Incidents 64
II Disadvantages of C o m m o n Law Tenures Avoided by the
Device of Putting Lands in Use 65
A Origin and Effect of Putting Lands in Use 65
B Creation of the Distinction Between the Legal
and the Equitable Estate 68
C Advantages of Putting Lands in Use 69
D Influence of Common Law Doctrines on the Use 71
E The Later History of Uses and the Rise of the Modern Trust Estate 72
III The Essential Difference Between the Legal and the Equitable Estate 78
A Nature ofthe Trust Estate 78
B Difference between Legal and Equitable Estate 80
C The Doctrine of the Bona Fide Purchaser for Value of the Legal Estate Without Notice 83
D Other Forms of Equitable Interests 91
4 SETTLEMENTS BEFORE 1926 94
I The Strict Settlement 95
A Form of Setdement 95
B Disadvantages of Setdement 97
C Statutory Reform
II The Trust for Sale 103
III Summary of Two Methods of Settling Land before 1926 105
B THE MODERN LAW 107
5 THE SIMPLIFICATION OF THE LAW: 1925, 1996 AND 2002 109
I Simplification Law of Real Property in 1925
A The Reduction of Tenures to One Common Form
B The Assimilation of Real and Personal Property Law
C The Abolition Certain Anachronisms
CONTENTS Vii
II Simplification of Conveyancing in 1925, 1996 and 2002
A Contract before Conveyance 120
B Unregistered Conveyancing 121
C Registered Conveyancing 131
D Comparison of Unregistered and Registered Systems in the Modern Law
P A R T I I I E S T A T E S A N D I N T E R E S T S I N L A N D
A FREEHOLD ESTATES 149
6 THE ESTATE IN FEE SIMPLE ABSOLUTE IN POSSESSION 151
I Definition 151
A Fee Simple 151
B Absolute 152
C In Possession 154
II Mode of Creation 155
A Words of Limitation 155
B Voluntary Conveyance 157
C Registered Land 158
III The Legal Position of a Tenant in Fee Simple
A Extent of Ownership 158
B Restrictions on Ownership 167
7 COMMONHOLD 169
I Nature of Commonhold 169
II Aims of the Legislation Introducing Commonhold 170
III The Commonhold Scheme 171
A Commonhold Land
B Registration ofthe Title to Commonhold Land 172
C The Commonhold Association 172
D The Commonhold Community Statement 173
E Transfer of Commonhold Units 174
F Leases and Charges of Commonhold Units 174
G Termination of Commonhold 175
B LEASEHOLD ESTATES 177
8 GENERAL CHARACTERISTICS AND CREATION OF LEASES 179
I General Characteristics a Lease 180
A Terminology 180
B The Lease as an Estate or Interest in Land.
Legal and Equitable Leases
C The Lease as a Contract 182
Viii CONTENTS
D The Essentials of a Lease 184
E The Right to Exclusive Possession 185
F The Term
II Tenancies at Will and at Sufferance, Periodic Tenancies
and Tenancies by Estoppel 201
A Tenancy at Will 201
B Tenancy at Sufferance 203
C Tenancy from Year to Year and Other Periodic Tenancies 204
D Tenancy by Estoppel 208
III Creation of a Lease 210
A Contract for a Lease 210
B Lease 210
9 COVENANTS IN LEASES 223
I Rights and Duties of Landlord and Tenant 223
A Position where there are no Express Covenants or Conditions 224
B Position where there are Express Covenants and Conditions 241
II Remedies of the Landlord for the Enforcement of the Covenants 269
A Covenant to Pay Rent 269
B Covenants Other than the Covenant to Pay Rent 287
III The Effect of Assignment on Covenants 302
A Covenants in Leases Granted Before 304
B Covenants in Leases Granted After 1995 320
10 TERMINATION OF LEASES AND RECOVERY OF POSSESSION BY THE LANDLORD 329
I Termination a Lease 330
A Effluxion of Time 330
B Termination by Notice 331
C Forfeiture 339
D Repudiation 339
E Surrender 340
F Merger 342
G Enlargement 343
H Frustration 343
I Effect of Termination of Head Tenancy on Sub-Tenancy 345
J Termination of Tenancy at Will 346
II Recovery of Possession by the Landlord 346
A Re-entry by the Landlord 347
B Leases of Dwellings. Requirement of Court Order to Recover Possession 348
C Criminal Offences of Unlawful Eviction and Harassment 348
D Damages for Unlawful Eviction or Harassment 349
E Impact of the Human Rights Act 1998 on the
Landlord's Claim for Possession 350
CONTENTS
STATUTORY CODES FOR SPECIAL LEASES 357
I Private Residential Lettings 358
A Assured Tenancy 360
B Assured Shorthold Tenancy 367
C Control Rent 369
D Security of Tenure 371
II Public Sector Housing. Secure Tenancy 383
A Definition a Tenancy 383
B No Control of Rents 384
C Security of Tenure 385
D Demoted Tenancy 386
E Introductory Tenancy 387
F Succession 388
G Right to Buy 389
III Long Tenancies 389
A Leasehold Reform Act 1967 390
B Landlord and Tenant Act Part I.
Local Government and Housing Act 1989 398
C Leasehold Reform, Housing and Urban Development Act 1993 400
D 'Right to Manage' 405
IV Business Tenancies 406
A The Qualifying Tenancy 407
B Exclusions 409
C Security of Tenure and Rent 409
V Agricultural Tenancies 417
A Agricultural Holdings 417
B Farm Business Tenancies 420
VI Residential Flats. Tenants' Rights of First Refusal 424
VII Law Reform 425
C EQUITABLE BENEFICIAL INTERESTS IN LAND 429
12 THE STRICT SETTLEMENT AND THE TRUST FOR SALE BEFORE 431
I The Strict Settlement 432
A The Definition of a Settlement under the
Settled Land Act 1925 432
B The Machinery a Settlement after 1925 436
C The Tenant for Life 440
D The Trustees ofthe Settlement 455
E Capital Money 458
II The Trust for Sale Before 462
A The Definition of a Trust for Sale 462
B The Doctrine Conversion 465
CONTENTS
C The Powers ofthe Trustees for Sale 466
D Statutory Trusts for Sale 470 III Defects in the Dual System Settlements 471
13 THE TRUST OF LAND 474
I The Trust Land 474
A No New Strict after 1996 475
B Meaning of Trust of Land 475
II Functions of Trustees of Land 479
A General Powers 479
B Exclusion and Restriction of Powers 480
C Delegation by Trustees 481
III Beneficiaries Under a Trust of Land 483
A Consents 483
B Consultation with Beneficiaries 484
C Rights of Occupation 485
IV Protection of Purchasers 486
A Overreaching 486
B Limitation on Powers and Consent Requirements 487
C of Discharge 488
V Powers of the Court 488
A General 488
B Bankruptcy 490
14 CONCURRENT INTERESTS 492
I Concurrent Ownership at Law and in Equity 492
A Several and Concurrent Ownership 492
B Co-ownership at Law and in Equity 493
II Forms Concurrent Ownership 493
A Joint Tenancy 493
B Tenancy in Common 496
III Concurrent Interests in the Modern Law 499
A Conveyancing Difficulties Before 1926 499
B Scheme of the 1925 Legislation and the Trusts of Land and
Appointment of Trustees Act
IV Establishing the Beneficial Interests 512
A Express, Constructive and Resulting Trusts 512
B The Family Home 519
V Party walls 524
15 FUTURE INTERESTS. THE RULES AGAINST PERPETUITIES AND ACCUMULATIONS OF INCOME 526
I Future Interests the Problem of Perpetuity 526
A Future Interests 526
CONTENTS
B Application Modern Rule against Perpetuities.
Effect of the Legislation of 1925 528
II The Modern Rule Against Perpetuities 528
A Three Rules Against Perpetuities. 528
B The Rule Applicable to Instruments Taking Effect Before
16 July 1964: the Common Law 530
C The Rule Applicable to Instruments Taking Effect After
15 but Before 6 April 2010: the Perpetuities and
Accumulations Act 1964 558
D The Rule Applicable to Instruments Taking Effect After
5 April 2010: the Perpetuities and Accumulations Act 2009 575
III The Rule Against Accumulations of Income 577
A The Rule Applicable to Instruments Taking Effect Before 6 April 2010 579
B The Rule Applicable to Instruments Taking Effect After 5 April 583
16 ENTAILED INTERESTS AND LIFE INTERESTS 584
I Entailed Interests 584
A History 585
B Creation of Entailed Interests 589
C Entailed Interests After 1925 598
D No New Entailed Interests After 1996 605
II Life Interests 605
A Life Interests in the Modern Law 605
B Classes Life Interests 607
C The Rights and Obligations of a Tenant for Life 608
17 DETERMINABLE INTERESTS AND INTERESTS UPON CONDITION SUBSEQUENT 612
I Determinable Interests
A Definition and Terminology 612
B Determinable Fee Simple 613
C Determinable Life Interest 614
D Determinable Term of Years 615
II Interests upon Condition Subsequent 616
A General Nature and Effect 616
B Void Conditions 620
D OTHER LEGAL AND EQUITABLE INTERESTS IN LAND 631
18 EASEMENTS AND PROFITS 633
I Easements and Profits as Property Rights 633
II Easements 634
A Nature of Easements 634
B Easements Distinguished from Other Rights 649
C Legal and Equitable Easements 650
CONTENTS
D Acquisition of Easements 651
E Extent of Easements 686
F The Running Benefit and the Burden an Easement 690
G Remedies for Infringement of an Easement 694
H Extinguishment of Easements 696
III Profits a Prendre 701
A Nature of Profits a Prendre 701
B Classes of Profits a Prendre 704
C Legal and Equitable Profits a Prendre 712
D Acquisition of Profits a Prendre 712
E The Running of the Benefit and the Burden of a Profit a Prendre
F Extinguishment of Profits a Prendre 715
IV Rights in the Nature of Easements and Profits a Prendre
Acquired by Fluctuating and Undefined Classes of Persons 717
A Rights in the Easements 717
B Rights in the Nature of Profits a Prendre 720
V Law Reform 723
19 COVENANTS 726
I Introduction 726
II The Defendant Must Have the Burden of the Covenant 728
A Burden does not Run with the Land at Common Law 728
B Burden of a Restrictive Covenant may Run with the Land in Equity 732
III The Claimant Must the Benefit ofthe Covenant 741
A Enforcing the Covenant as an Original Beneficiary 741
B Enforcing the Covenant as a Successor at Common Law 744
C Enforcing the Covenant as a Successor in Equity 746
IV Remedies for Breach of Covenant 759
A Positive Covenants 759
B Restrictive Covenants 760
V Discharge and Modification of Restrictive Covenants 763
A Position at Common Law 763
B Section 84 of the Law of Property Act 1925 764
C Housing Act 773
D Town and Country Planning Act 1990 773
VI Law Reform 774
VII Covenants and Planning 777
20 RENTCHARGES 779
I Nature of a Rentcharge 779
A Origin and History 779
B Legal and Equitable 780
C Rentcharge on a Rentcharge 781
CONTENTS
II Examples of Rentcharges
A Land 781
B Secured Family Annuities
C Positive Covenants 782
III Rentcharges Act 1977 782
IV Creation a Rentcharge 783
A By Instrument Inter Vivos 784
B By Will 784
C By Statute 785
D Registered Land 786
V Remedies for the Recovery a Rentcharge 786
A Distress 786
B Entry upon the Land Charged 787
C Lease to Trustees 787
D Action for Payment 788
VI Extinction of a Rentcharge 790
A Release 790
B Merger 790
C Lapse Time 791
D Statute 791
21 MORTGAGES 793
I Introduction 793
II Creation of Mortgages 797
A The Modern Law in Historical Perspective 797
B Methods of Creating Mortgages Today 803
III Rights ofthe Mortgagor 814
A The Equity of Redemption 814
B Rights a Mortgagor who Remains in Possession 842
IV Rights ofthe Mortgagee 845
A Rights of Legal Mortgagee 845
B Rights of Equitable Mortgagee 870
V of Mortgages 872
A Priority of Mortgages Before 1926 873
B Priority After 1925 883
VI Law Reform 899
A Law Commission Report on Land Mortgages 1991 899
B Limitation of Actions 902
22 EQUITIES AND PROPRIETARY ESTOPPEL 903
I Mere Equities 903
A Nature an Equity 903
B Proprietary Characteristics of Equities 904
Xiv CONTENTS
II Proprietary Estoppel 906
A Different Forms of Estoppel 906
B The Development of Proprietary Estoppel 908
C The Modern Law of Proprietary Estoppel 909
D The Limits of Proprietary Estoppel 919
E Proprietary Estoppel as an Interest in Land 920
E LICENCES 923
23 LICENCES 925
I The Licensee at Common Law 926
A Bare or Gratuitous Licence 926
B Licence Coupled with a Grant or Interest 926
C Contractual Licence 927
D Remedies for Wrongful Revocation 927
II Contractual Licence: the Intervention of Equity 928
III Contractual Licence and Third Parties 930
IV Licence Protected by Constructive Trust 933
V Licence Protected by Proprietary Estoppel 936
A The Doctrine in 936
B Illustrations of the Remedies Available to Protect Licensee 937
C Third Parties
D Termination of Licence 942
VI Conveyancing Difficulties 942
P A R T I V T H E C R E A T I O N , T R A N S F E R A N D E X T I N C T I O N OF E S T A T E S A N D I N T E R E S T S I N L A N D
24 THE CONTRACT 949
I Formation Contract 950
A Pre-contract Enquiries and Disclosure 950
B Terms of the Contract.'Open Special Conditions of Sale 953
C Negotiations or Agreement 'Subject to Contract' 955
D Lock-out Agreement 957
E Exchange of Contracts 958
II Formalities Required for Contracts for the Sale or
Other Disposition of an Interest in Land 959
A Contracts Made Before 27 September 1989. Evidence of Contract 961
B Contracts Made After 26 September 1989. Requirement of Writing 966
HI Effect of Contract 978
A Contract Equivalent to Conveyance in Equity.
The Doctrine of Walsh v Lonsdale 978
B Contract of Sale. Vendor as Trustee for Purchaser 979
C Registration of Contract 982
CONTENTS XV
Option to Purchase and Right of Pre-emption 983
A Option to Purchase 983
B Right of Pre-emption 985
V Remedies of Parties to the Contract 986
A Remedies Relating to the Formation of the Contract 986
B Remedies for Breach of Contract 990
25 FORMALITIES REQUIRED FOR THE CREATION AND TRANSFER OF ESTATES AND INTERESTS IN LAND 999
I Introduction 999
II The Formalities 1001
A Formalities for the Creation and Transfer of
Legal Estates and Interests 1001
B Formalities for the Creation and Transfer of Equitable Interests
III Failure to Comply with the Required Formalities.
The Informal Creation of Interests in Land
A General
B The Doctrine of Walsh v Lonsdale
C Resulting or Constructive Trust
D Proprietary Estoppel 1014
26 CAPACITY TO ACQUIRE, HOLD AND TRANSFER ESTATES AND INTERESTS IN LAND 1018
I Minors 1018
A 1018
B Definition of Minority 1019
C Minor May Not Hold Legal Estate
D Acquisition and Alienation by Minor of
Equitable Interests in Land
E Management of Minor's Property 1025
II Married Women 1026
A Common Law
B Equity 1026
C Statute 1027
D The Modern Law
III Persons Lacking Mental Capacity 1028
A Jurisdiction 1028
B Definition Lack of Capacity 1029
C Decisions Taken by the Court or a Deputy
Appointed by the Court
D Lasting Power of Attorney
IV Corporations 1032
A Nature of Corporations 1032
B Classification of Corporations 1032
CONTENTS
C Methods of Creation 1033
D Doctrine of Ultra Vires 1034
E Capacity to Deal with Land
V Charities 1036
A Restrictions on Disposition 1037
B Exempt Charities 1038
27 UNREGISTERED CONVEYANCING 1039
I Introduction 1039
II Stages in a Conveyancing Transaction 1041
A Delivery of Abstract 1042
B Perusal of Abstract 1042
C Conveyance 1042
III Rights and Duties of the Parties 1042
A Rights and Duties under an Open Contract
B Contracts Containing Special Stipulations 1051
IV The Conveyance 1052
A Necessity for a Deed 1052
B Conveyance by a Person to Himself 1052
C The Form of a of Conveyance on Sale 1053
V Land 1053
A Protection of Interests by Registration
B Overreaching 1068
28 REGISTERED CONVEYANCING 1070
I Introduction 1071
II The Register 1071
A Scope Tide Registration 1071
B Arrangement Register 1072
C Inspection of the Register 1073
III First Registration of Title 1073
A Compulsory Registration 1073
B Voluntary Registration
C Demesne Land ofthe Crown. Special Rules 1075
D Classes of Title 1076
E Cautions Against First Registration 1079
IV Conclusiveness the Register. Alteration and Rectification 1079
A Rectification under the 1925 Act 1080
B Alteration and Rectification under the 2002 Act
C Indemnity 1082
V Dispositions of Registered Land 1084
A Owner's Powers in Relation to a Registered Estate
B The Machinery of Transfer of Registered Land 1084
CONTENTS
VI The Priority of Competing Interests in Registered Land 1095
A The Basic Rule: Date of Creation
B Exceptions to the Basic Rule
C Protection of Interests by Entry on the Register
D Overriding Interests
E Overreaching
VII Electronic Conveyancing
29 EXTINCTION OF ESTATES AND INTERESTS IN LAND 1123
I Merger
A Meaning of Merger
B Merger at Common Law
C Merger in Equity
II Adverse Possession
A The Significance of Possession in the Modern Law
B Lapse of Time, Prescription and Limitation of Actions
C Unregistered Land. Limitation Act 1980
D Land. Acts 2002 1158
E Adverse Possession and Human Rights
Select Bibliography
Index