Key points in Property

Question 1

Tenancy and license

Answer 1

Tenancy is a property right binding the owner and any future owner

Licence is merely a contract, binding the owner

Question 2

‘Blackstonian’ view of property

Answer 2

‘in total exclusion of the right of any other individual in the universe.’

3 characteristics:

private, exclusive, alienable

as a right to material things

the justification of such property in terms of labour (John Locke)

Question 3

What is property described as?

Answer 3

a bundle of rights’, not a unitary object

Question 4

A M Honore’s ‘Incidents of ownership’

Answer 4

1) the right to possess
2) the right to use
3) the right to manage
4) the right to the income produced- rent.
5) the right to the capital
6) the right to security
7) the right of transmissibility - if you die to leave it in your will for example
8) absence of term - have it indefinitely, ‘freehold’ indefinite right.
9) the prohibition of harmful use
10) liability to execution;
11) ultimate residuary rights

Question 5

Types of ownership

Answer 5

Freeholder (indefinite ‘ownership’)

Leaseholder (time-limited ownership eg 99 years)

Question 6

Mortgages

Answer 6

landowner borrows money and grants the lender a mortgage over their land. Not ‘ownership’ but gives rights to possess and sell the land if the landowner fails to pay

Question 7

Smaller rights in land

Answer 7

Easement - a limited right to do something on a neighbour’s land

Restrictive covenant - a promise not to do something on your land

Option to purchase land

Question 8

Possessory title

Answer 8

a claim to the right to possession of a thing

Question 9

Relativity of title

Answer 9

the ‘first in time’ possessor has a better title than anyone else - except for the true owner

Question 10

adverse possession

Answer 10

A trespasser who occupies land over time, excluding the true owner, can gain title to the land if she can demonstrate both:

factual possession
intention to possess

Question 11

Modern restrictions on adverse possession

Answer 11

State guarantee of registered title – notice given to registered owner under Sch 6, LRA 2002

●Squatting in a residential building now a criminal offence if the person enters as a trespasser

Question 12

Property right

Answer 12

Proprietary right
A ‘real’ right
A right in rem - a right directed towards property
Translates to a right ‘in the thing itself’
Right can be available ‘against the whole world’

Question 13

Personal right

Answer 13

A right in personam
●A right directed towards a particular person
●Right is available against that particular person

Question 14

Property rights v personal rights

Answer 14

A property right can be distinguished from a personal right in that it is alienable (it can be given away or sold), and it is enforceable against people who were not involved in creating it

Question 15

Types of property: personal property - (1) tangible

Answer 15

(choses in possession) - also known as ‘chattels’

Moveable items that you can touch eg a bag of gold

Question 16

personal property - (2) intangible

Answer 16

all rights which can only be enforced by action, and not by taking physical possession’: Channell J in Torkington v Magee [1902] 2 KB 427, at 430
*e.g. shares, debts, money in your bank account, intellectual property …

Question 17

tenure

Answer 17

Tenure means holding land rights from someone with superior rights. Legally, all land rights in this jurisdiction are ultimately held from the Crown as the ultimate owner.

Question 18

Land Law: key concepts - estates

Answer 18

LPA 1925 s1

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 (freehold, unlimited right to the land, will last indefinitely)
(b) A term of years absolute (leasehold, limited by time)
(2) The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are –
(a) an easement… …
(c ) a charge by way of legal mortgage

(3) All other estates interests and charges in or over land take effect as equitable interests

Question 19

Essentials of a lease

Answer 19

A valid lease requires:

clearly defined premises;

exclusive possession by the tenant (including the right to exclude the landlord); a fixed term (not uncertain);

proper formalities—typically by deed unless it qualifies under the short lease exemption (LPA 1925, ss.52(1), 54(2)); and while rent is usually paid, it’s not essential for a lease to exist.

Question 20

Easements and mortgages are examples of…

Answer 20

These are rights allowing someone to either use another’s land or restrict how the owner uses it, often referred to as “third party rights.”

Question 21

Easements (eg a right of way)

Answer 21

To qualify as an easement under Re Ellenborough Park [1956] Ch 131, four criteria must be met:

There must be a dominant tenement (benefited land) and a servient tenement (burdened land);

The easement must benefit the dominant tenement;

The dominant and servient owners must be different people;

The right must be capable of being granted—i.e. clear, legally enforceable, and not dependent on personal service or vague concepts like privacy.

Question 22

Mortgages

Answer 22

A mortgage is both a contract and a proprietary interest: it secures a loan by charging the borrower’s property. It can be a legal interest under s.1(2)(c) of the Law of Property Act 1925.

Under s.87 LPA 1925, the mortgagee has the same rights and protections as if the mortgage were a 3,000-year lease—effectively treating it as an estate in land

Question 23

Common equitable interests in land: trust

Answer 23

A trust is a unique form of property ownership where one person (the trustee) holds legal title to an asset for the benefit of another (the beneficiary), who holds the equitable interest. Unlike absolute ownership, the trustee cannot use the asset for personal gain and is bound by fiduciary duties.

For example, if a parent dies and leaves assets to underage children, a trustee holds those assets until the children come of age.

Question 24

Common equitable interests in land: restrictive covenant

Answer 24

A covenant is a formal promise in a signed, witnessed, and delivered deed, enforceable like a contract even without consideration.

The covenantor bears the obligation, while the covenantee receives the benefit.

Freehold covenants act as “private planning law,” often used in property developments or between neighbours (e.g., restricting building). Leasehold covenants, set out in leases, impose obligations on tenants (e.g., repair contributions, noise restrictions).

Question 25

Positive + negative covenants

Answer 25

Positive Covenants A promise to do something (e.g., pay money, build a wall). Only enforceable between the original parties (personal right), not binding on future freehold owners. Negative/Restrictive Covenants A promise not to do something (e.g., not to build a factory, limit building height). Can bind future owners (proprietary right), running with the land. If aware of the promise, the buyer is bound by it. The key difference is enforceability: positive covenants stay personal, while restrictive ones can affect successors.

Question 26

How are chattels transferred?

Answer 26

Informal Transfer (Most Common) Delivery: Physically handing over the item with intent to transfer ownership (e.g., giving a gift). Formal Transfer (By Deed) Must comply with the Law of Property (Miscellaneous Provisions) Act 1989: Written document. Signed by the current owner. Witnessed. Used for more formal transactions. (Key difference: Informal = simple delivery; Formal = written, signed, witnessed deed.)

Question 27

informal transfer of title to tangible personal property (chattels) by delivery

Answer 27

Intention to Transfer Ownership The giver must clearly intend to pass title (legal ownership) to the recipient. Valid Delivery (Three Recognized Forms) Actual Delivery – Physically handing over the item (e.g., giving a book). Constructive Delivery – Transferring control without physical handover (e.g., handing over keys to a car). Symbolic Delivery – Using a representative object (e.g., handing over a deed for land). Key Point: Without both intent + valid delivery, ownership does not legally transfer.

Question 28

To transfer title to tangible property (chattels) by deed under the LP(MP)A 1989, s.1, the deed must:

Answer 28

State it’s a deed (e.g., titled “Deed of Transfer”). Be properly executed: Individuals: Signed before an attesting witness. Companies: Different rules apply. Be delivered (completed and handed over, physically or otherwise). Note: First mention in writing should spell out the Act; abbreviate thereafter (e.g., LP(MP)A 1989).

Question 29

Why do we use formal methods for legal acquisition and transfer of title?

Answer 29

Pros & Cons of Using a Deed for Property Transfers Pros: ✅ Convenience – Standardized process. ✅ Certainty – Clear terms, parties, and date of transaction. ✅ Evidence – Permanent record (useful if parties are no longer alive). ✅ Warning Flag – Highlights legal significance, reducing disputes. ✅ Encourages Legal Advice – Ensures proper execution. ✅ Public Notice – If registered, binds third parties. Cons: ❌ Higher Costs – Requires lawyers, increasing expenses. ❌ Time-Consuming – More formal than informal transfers. ❌ Risk of Invalidity – Non-compliance may void the deed, requiring legal checks. Summary: Deeds provide security and permanence but at a higher cost and complexity than informal transfers. (Key Trade-off: Reliability vs. Speed/Cost.)

Question 30

Transfer of shares (Intangible property/Choses in action)

Answer 30

Transfer of Private Company Shares Required Compliance: Stock Transfer Act 1963 Companies Act 2006 Company’s Articles Key Steps: Signed Transfer Form – Transferor must complete statutory form (Stock Transfer Act 1963, s.1(1)-(2) & Sch 1). Registration – Update ownership in the register of members (Companies Act 2006, ss.113 & 128A). (Applies to sales, gifts, or inheritances. Ensures legal validity and record-keeping.) Private Companies Directors' Duty: Must act in good faith for the company’s interests. Refusal Power: Majority resolution needed to block transfers. Articles Control: May include pre-emption rights for existing shareholders. Model Art 26(4): Transferor remains owner until register is updated. If Refused: Seller holds shares on trust for buyer. Public Companies Electronic Transfer: Via CREST (no paper certificates). Register: Shareholder details publicly inspectable.

Question 31

Intellectual property rights (intangible property/choses in action)

Answer 31

No deed required for validity. But registration is critical: Patents Act 1977 & Trade Marks Act 1994 mandate UKIPO registration. Without it, future buyers aren’t bound by the transfer.

Question 32

Structuring the answer to a problem question on transfer of property rights

Answer 32

Step 1: Identify what type of property is to be transferred (real, or personal: tangible or intangible) Step 2: Identify how it is going to be transferred (what type of disposition: will, sale, or gift?) Step 3: Which legal formalities apply, and have they been complied with? [Step 4: Can Equity assist to complete the transfer? (See Equity lectures in weeks 5 and 6)] Final step: what will happen to the property? (in whose hands will it end up?)

Question 33

Why are formal methods (like deeds and registration) crucial for land acquisition and transfer?

Answer 33

Ensure convenience, certainty (parties, terms, date), lasting evidence, a 'warning flag' for significant transactions, encourage legal advice, and provide 'notice to the world' through registration.

Question 34

What is the primary formality for most land dispositions? What statute mandates this?

Answer 34

A deed is required. See s.52(1) Law of Property Act 1925 and s.1 Law of Property (Miscellaneous Provisions) Act 1989.

Question 35

What are the requirements for a valid deed for an individual? What statute applies?

Answer 35

Must state it's a deed (s.1(2)(a) LP(MP)A 1989), be signed by the individual in the presence of an adult, non-family witness who attests the signature (s.1(3)(a)(i) LP(MP)A 1989), and be delivered as a deed (s.1(3)(b) LP(MP)A 1989)

Question 36

What is the second key formality for transferring legal title to registered land? What statute applies?

Answer 36

Registration of the deed at the Land Registry. See s.27 or 32 Land Registration Act 2002. Assume all land is registered for this module.

Question 37

What are the two legal estates in land? What statute defines them?

Answer 37

Freehold (indefinite) and Leasehold (for a defined period). Defined in s.1(1) Law of Property Act 1925.

Question 38

What are the formalities for the contract stage of a land sale? What statute applies if it's not in writing?

Answer 38

Must be in writing, contain all express terms, and be signed by each party (s.2 Law of Property (Miscellaneous Provisions) Act 1989). If not written, the contract is ineffective (s. 54(1) LPA 1925).

Question 40

How does a lifetime gift of land differ in formalities from a sale? What formalities are crucial?

Answer 40

No contract stage. The transfer relies heavily on a deed (s. 52(1) LPA 1925, s.1 LPMPA 1989) and subsequent registration (s.4 & s.27(2)(a) LRA 2002) to be effective.

Question 41

What are the two main ways property is transferred on death? What statute governs wills?

Answer 41

Via a valid will or according to the rules of intestacy (s.46 Administration of Estates Act 1925). Wills are governed by s.9 Wills Act 1837 (as amended).

Question 42

What are the key requirements for a valid will (s.9 Wills Act 1837)?

Answer 42

Must be written, signed by the testator in the presence of two witnesses present at the same time, who also attest and sign (or acknowledge their signature) in the testator's presence

Question 43

How is legal title to land transferred after death via a will? What statutes apply?

Answer 43

Executors transfer by deed (s. 52(1) LPA 1925, s.1 LPMPA 1989), and the beneficiary registers the transfer (s.4 & s.27(2)(a) LRA 2002).

Question 44

How are leasehold estates created and transferred? What is the primary formality?

Answer 44

Creation (grant) and transfer (assignment) must generally be by deed (s.52(1) LPA 1925) and registered (s. 27(2)(a) or (b), LRA 2002).

Question 45

What are the exceptions to the deed requirement for creating short leases? What statute applies?

Answer 45

Leases for a term not exceeding three years, taking effect in possession at the best rent, can be created orally (s.54(2) LPA 1925).

Question 46

What is the exception to the registration requirement for certain leases? What statute applies?

Answer 46

Leases granted for a term not exceeding seven years do not need to be registered (s.27 (2)(b)(i) and Schedule 3, para. 1, LRA 2002).

Question 47

How are mortgages (legal charges) over land created and transferred? What statutes apply?

Answer 47

Created by deed (s.52(1) LPA 1925, s.23 LRA 2002) and must be registered (s.27(2)(f) LRA 2002). Transferred by deed (s.52(1) LPA 1925).

Question 48

How are legal easements typically created and protected? What statutes apply?

Answer 48

Expressly created by deed (s.52(1) LPA 1925) and must be registered (s.27(2)(d) LRA 2002).

Question 49

How are equitable restrictive covenants created and protected? What statute applies for protection?

Answer 49

Created by deed and protected by entering a notice on the register (s.32 LRA 2002).

Question 50

What is the consequence of failing to register a legal estate or interest? What statute applies? What interests can/cannot be noted?

Answer 50

Legal title doesn't transfer until registration (s.27(1) LRA 2002). Notices can be entered for leases (3-7 years) and equitable interests (s.32 LRA 2002), but not for leases under 3 years or interests under a trust (s.33 LRA 2002).

Question 51

What are some key exceptions to land formality requirements allowing informal rights? What statutes apply?

Answer 51

Short leases (under 3 years) (s.54(2) LPA 1925), easements by prescription (e.g., s.2 Prescription Act 1832), and adverse possession (see LRA 2002 Sch 6 for registered land).