A Beginner’s Guide to Land Law

This month, we are reviewing key aspects of English land law. Students often find land law a difficult subject to study. Part of the reason for this may be because ownership of land in England has its roots in the feudal system established by William the Conqueror after 1066. The modern source of land law is derived from common law, equity, and legislation such as the Law of Property Act 1925 and the Land Registration Act 2002. 

English land law is fundamentally about the acquisition of rights and obligations among people with interests in land. Ordinarily, ownership of land is acquired by a Deed of Transfer (if the land is registered at the Land Registry) or a Deed of Conveyance (if the land is unregistered) and once a sale is completed the buyer must formally register their interest with the HM Land. Since 2013, 85% of land has been formally registered at The Land Registry. The remaining 15% of land is currently unregistered and any property disputes relating to unregistered land is settled using common law principles.

The terminology and key rights in land

One of the first hurdles to get over when studying land law is that it has a terminology all of its own. This is no doubt because of the origins of the system in feudal England. Terms like “incorporeal hereditament”, “freehold absolute in possession” or “licence” can all cause confusion, but the plain English meaning of these words will be familiar to most. An incorporeal hereditament would include an easement. If you are still none the wiser, an easement is a right that a landowner has in, under, or over someone else’s land, e.g. right of way. A freehold absolute in possession is an estate in land. If you are still not sure, an estate owner is the owner of land. A license is a general term for a right to use land on a temporary and personal basis.

Other key rights in land law include:   

  • Leases, which are when an owner allocates the use of land to a new owner for a period of time. The law also recognises that sometimes the owner may simply be giving a licence for their property to be used, which in theory creates only a personal right.
  • Mortgages are used to give moneylenders the right to seize property in the event that a loan is not repaid.
  • Covenants involve rights and duties between neighbours; for example, an agreement that a neighbour will not build on a piece of land.

Property rights and ownership

Because land and the things on it can be enjoyed by a number of people at once, the law often has to accommodate multiple interests and decide what order of importance a right or interest takes. For example, sometimes the rights of an owner of land may take second place to the right of someone with an interest in land – say in the case where an owner rents a property, the tenant will have a better right to occupy the property than the legal owner of that land.

Another example would be what should happen when rights in land are owned by more than one person. Co-ownership in English land law takes two key forms – joint tenancies and tenancies in common. In a joint tenancy, the law assumes that the owners all own equal shares and allows for a right of survivorship where, when one owner dies, their share will automatically pass to the other surviving owners. With a tenancy in common, each owner has a share in a property and there is no right to survivorship. When there are co-owners in a property and they fall into disagreement over how the land is to be used, the law steps in to give guidance about who can live on a property or when it can be sold. These rules are found in the Trusts of Land and Appointment of Trustees Act 1996, which was aimed at reducing when land would have to be sold where co-owners disagreed.

Even those reading this article who have completed their Diploma studies may find they are still uncertain about some aspects of land law. It is a subject that has to be studied steadily over a number of years, and a full understanding may come only as more pieces of the jigsaw are revealed. Land law is sometimes described as a “black letter” area of legal study. What this means is that to be a good land lawyer you need to know the rules and how they apply in different situations. Land law’s reputation as the “hardest subject” may be disserved, in part, but on the positive side land law is usually logical and predictable despite its ancient origins. If you can get over the hurdle of difficult terminology, you may find that the study of land law can be enjoyable. Even if you do not find the subject enjoyable, it is certainly useful as the vast majority of commercial and many domestic transactions involve issues of land.