Chapter 2 Answers to end of chapter questions

Self-test questions

From what historical event did the doctrines of tenure and estate originate? How important are they in the modern law?

Answer: The doctrines of tenure and estate originate from the Norman conquest of England in 1066. The feudal system of landholding was introduced, whereby land was held from a lord for a period of time in return for certain services and other charges or ‘incidents of tenure’. The holding of land is tenure, and the period of time for which it is held is an estate.

Tenure makes little practical difference to land law today, as everyone holds their land directly of the Crown, and there are no services due. The only remaining incident of tenure is escheat (the return of the land to the Crown on certain events). The doctrine of estates is still important, however, though the number of estates which can exist at common law was reduced by the Law of Property Act 1925.

See 2.2.1 and 2.2.2.

What were the main differences between legal and equitable interests in land before 1926?

Answer: Legal estates and interests are those recognized by the common law. Equitable estates and interests are those recognized by equity. Equity was prepared to recognize interests that were not accepted by the common law, such as the interests of beneficiaries under a trust.

Before 1925, the main differences between the two were that legal estates and interests were said to be ‘good against the world’ (i.e. would affect anyone who bought the land or an interest in it), whereas equitable estates and interests were binding only on those who took with notice of their existence. The doctrine of notice meant that purchasers of land were sometimes bound by equitable interests of which they were unaware, but that sometimes equitable owners lost their interests if a purchaser of land had no notice of them.

See 2.3.1 and 2.4.

Which estates in land can now exist ‘at law’? What has happened to the other former estates?

Answer: LPA 1925 s.1(1) provides that there are only two legal estates in land. They are the fee simple absolute in possession (the freehold estate), and the term of years absolute, which is the leasehold estate.

By LPA 1925 s.1(3), all other estates (such as the life estate and fee tail) can take effect only in equity. This means that the legal estate will be held by trustees to give effect to the life estate or fee tail. Since the enactment of Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) no new entails (fees tail) can be created in equity either.

See: 2.5.1.

What is the difference between ‘registered’ and ‘unregistered’ land?

Answer: Registered land is land to which the title has been registered at the land registry. Compulsory land registration was introduced by the Land Registration Act 1925, but is now governed by the Land Registration Act 2002. The register of title contains a description of the estate, the names of the proprietors, and charges and interests burdening the estate. The register is the proof of the title to the estate.

There is no compulsion on a landowner to register their land unless a ‘relevant event’ occurs, usually the transfer of the land to a new owner. Until that happens, the land is unregistered land. There is no definitive proof of title to unregistered land; the owner must produce documentation showing how they became the owner – a good root of title.

See 2.5.2, especially table 2.4.

How are equitable interests protected in unregistered land?

Answer: There are three ways in which equitable interests may be protected in unregistered land. Some interests may be registered in the land charges register. Such interests are set out in Land Charges Act 1972 s.2). They must be registered against the name of the estate owner whose estate is affected, and once correctly registered, will be binding on purchasers of the land. These interests are generally ones which would be granted for money or money’s worth, and include estate contracts and equitable easements.

Some interests are not registrable and are intended to be overreached on a purchase of the land. This means that the right will be lifted off the land and into the purchase money. Such interests include the rights of beneficiaries under trusts of land.

Some interests do not fall into either category, and will be binding on a purchaser if he or she has notice of the interest. This includes rights created by proprietary estoppel.

See 2.5.2.1.

Examination questions

What were the main objectives of the 1925 property legislation and how far can they be said to have been fulfilled?

Answer: The 1925 property legislation consisted of six Acts of Parliament which consolidated earlier piecemeal changes in the law and brought it all together as a body of law, and which made substantial changes to the common law of property. The Acts tried to achieve two main objectives: to make it easier to transfer land and interests in land to others; and to make it possible to use land for a variety of purposes, both family purposes and commercial purposes, by allowing ‘fragmentation of benefit’ (creating numerous interests in land).

This was achieved by three main reforms: firstly, by reducing the number of legal estates and interests in land; secondly by introducing a system of compulsory registration of title, and thirdly by providing a mechanism for lifting equitable interests from the land, and instead satisfying them from purchase money (overreaching).

The reduction of the estates to two legal estates has been largely successful in making land law less complicated and less subject to the doctrine of notice. However, the rollout of land registration has been quite slow, with many estates still not registered almost a century after the introduction of compulsory registration. The transfer of land is still a slow and frustrating business, despite the many reforms that have been made.

See 2.5. and additional material in the online resources for this chapter.

[Note: a fuller answer would include material form other chapters]

‘Law of Property Act 1925, s. 1(1)

The only estates in land which are capable of subsisting or of being conveyed or

created at law are—

(a) An estate in fee simple absolute in possession;

(b) A term of years absolute.’

Explain the significance of this provision in English land law.

This provision is at the heart of the reforms to land law made by the 1925 property legislation. Before 1925, there were a number of estates which could exist at common law, including the fee tail and the life estate. The 1925 property legislation consisted of six Acts of Parliament which consolidated earlier piecemeal changes in the law and brought it all together as a body of law, and which made substantial changes to the common law of property. The Acts tried to achieve two main objectives: to make it easier to transfer land and interests in land to others; and to make it possible to use land for a variety of purposes, both family purposes and commercial purposes, by allowing ‘fragmentation of benefit’ (creating numerous interests in land).

The reduction of legal estates in land to the two named above, which are respectively the freehold and the leasehold estate, goes towards the first objective of simplifying the transfer of land from one owner to another.

In English law, all land is held of the Crown, under the doctrine of tenure, for a period of time known as an estate. The fee simple absolute in possession is the most complete estate that a person can hold in the land, lasting effectively forever. This is now the only legal freehold – other freehold estates such as the fee tail and the life estate can now exist in equity only, with the fee simple absolute being held on trust to give effect to these lesser estates. Fees simple that are less than absolute, such as conditional and determinable fees can also exist only in equity, behind a trust of land.

The old doctrine of notice in respect of equitable interests in land has also largely been replaced by registration of title, or of land charges in estates that remain as yet unregistered, as well as by the process of overreaching certain interests and thus removing them from the land itself to the purchase money instead.

[Note: a fuller answer would include material from other chapters].