L8 - Ownership in English Land Law

Question 1

Main argument

Answer 1

technically possible to be ‘the owner’ of land under English Land law, but notion of ownership not v helpful / rather confusing when it comes to understanding functioning of English land law

Question 2

Outline

Answer 2

I. Defining ownership
- instinctive idea of absolute dominion must be qualified
- bundle of rights v right to exclude

II. Compatibility w/ English Land Law
- tenure
- estates
- no action to vindicate it (Swadling)
- relativity of title (Megarry & Wade)

Question 3

Defining ownership - instinctive idea of O

Answer 3

= absolute dominion over a thing (RL) : right to do whatever one want with it (use alienate abuse destroy)

Question 4

Defining ownership - qualifying instinctive idea of O

Answer 4

Right to land is always subj to restrictions (eg nuisance & planning permission) => has to be qualified

No absolute right to anything under any legal system -> always qualified by prohibition on using things in a manner harmful to others

Question 5

Defining O - bundle of right view

Answer 5

Harris, Honoré (among others) : conception of ownership as an ‘open ended set of use-privileges and control-powers’ = ‘bundle of rights’

Question 6

Defining O - right to exclude view

Answer 6

McFarlane : idea that ownership / property rights are best understood as a right good against the whole world to exclude others from a thing

Question 7

Defining O - BOR v RTE

Answer 7

the 2 are not mutually incompatible

For A to be able to do what they like w/ a thing (excercise rights from the bundle), needs to be able (at least initially) to exclude ppl from it => right to exclude is a necessary feature of O

BUT right to exclude is not a sufficient feature for there to be O : eg tenant under weekly tenancy wouldn’t really be considered ‘the O’ of a flat, despite his right to exclude => need for some degree of permanence and durability

Question 8

Defining O - Honoré’s account

Answer 8

= 11 features of the ‘standard’ case of O (memorise) - together sufficient, not all necessary (although some are)

=> a ± flexible defº of O : needed to fit w/ English land law, but bcs of that very flexibility, notion is not that clear or helpful

Question 9

Defining O - Honoré’s account - the 11 features

Answer 9

1) Right to exclude the rest of the world
2) liberty to use at one’s discretion
3) right to manage = determine who can use it and how
4) right to income / fruits
5) right to capital = right to alienate (for value) + liberty consume / waste / destroy
6) right to security = immunity against eviction (HR)
7) unlimited transmissibility
8) absence of term
9) duty not to use in a manner harmful to others
10) liability that the thing be taken away to repay a debt
11) residuary character (if incumbered, come backs once encumbrances end)

Question 10

Compatibility - Tenure - the argument

Answer 10

all land in England and Wales is held on tenure = granted by the Crown => only the Crown (if anyone) owns land

Question 11

Compatibility - Tenure - response (4)

Answer 11

in practice, tenure is not incompatible with private ownership of land (Rostill) :

main remaining feature of tenure = escheat : land reverts to the crown when the fee simple estate in it ends

=> existence of escheat doesn’t mean that the crown = the owner of all land : all it has is a residuary right to it  unless and until the land escheats (which rarely happens in practice) no right to exclude or manage or abuse (that would be HR violation, A1P1 and possibly art 8)

vs holder of fee simple does have the rights on the list despite escheat

Question 12

Compatibility - Estates - the argument

Answer 12

In English law, it is only possible to own an estate in land (as in a ‘slice of time), not the land itself

Question 13

Compatibility - Estates - response (3)

Answer 13

(R) Still doesn’t mean there can’t be effective ownership of land in practice => eg unencumbered freehold

BUT does show that not so helpful in practice
=> consider more complex sitº: eg A freeholder grants 30y lease to B who grants monthly tenancy to C
=> each has rights which correspond to some features of O, O seems to be ±split among them, diff to describe a single one of them as the owner

+ trying to figure out who comes closest to being ‘the owner’, or if several of them can own at the same time won’t really get us anywhere in practice – what matters = who has what rights against whom (and for how long), not who can be called ‘owner’

Question 14

Compatibility - action - the argument

Answer 14

Swadling : no equivalent to RL vindicatio = no way of asserting ownerhip as such in ELL

Question 15

Compatibility - action - response

Answer 15

(R) Just bcs O can’t / is never required to assert his ownership as such doesn’t mean that he isn’t effectively the O of the land (eg unencumbered freeholder)

BUT again ag does show that O not v helpful in practice

Question 16

Compatibility - relativity of title - the argument

Answer 16

Megarry and Wade: No O in ELL bcs never quite certain who is the owner of land, always technically possible for someone to come forth w/ a better title

Question 17

Compatibility - relativity of title - response (4)

Answer 17

(R) That doesn’t mean land can’t be owned, just that you can’t be absolutely sure who owns it
+ in practice, possible to be reasonably certain (guarantee of title + AP & lim period barring claims)

BUT guarantee of title not as strong as it looks -> pb of ‘mistake’
eg A loses title to house bcs B forges transfer, B then transfers to C – C’s title still counts as a ‘mistake’ for the purpose of sch 4 LRA 2002, enabling A to seek alteration or rectification (Gold Harp + NRAM v Evans) => need for long stop provision (Law Com is calling for it)

=> even a person w/ a registered unencumbered freehold isn’t guaranteed to be ‘the owner’, as there might be someone better entitled to the title out there who could be described as a ‘true O’

=> maybe the context of relativity of title is one where concept of O could actually be helpful => O being the person w/ best title (or best entitled to legal title if RL) until his right gets barred – but then a bit of a weird conception of ownership since it can be extinguished by time if not asserted (or mb not so much bcs possible to abandon things)

Question 18

Conclusion (2)

Answer 18

Possible to own land under English land law, as long as ownership is not conceived as an absolute right subject to no restrictions whatsoever

BUT the concept of ownership is more confusing than helpful when it comes to explaining / understanding mechanisms of English land law, especially features such as the doctrine of, not to mention equity & trusts