Land Law Values

Introduction
By English land law is meant the land law of England and Wales, two of the four parts of the United Kingdom of Great Britain and Northern Ireland, the other two parts being Scotland and Northern Ireland. England and Wales use the same land law, and Northern Ireland (like the Irish Republic) also uses English land law, but subject to the legislation of its own Parliament. There is, therefore, no such thing as British land law. The English Land law can only be explained by an elaborate historical analysis.
A system of land law has developed over many centuries, over which there has been significant reforms to the law. William the Conqueror established a feudal system in which he claimed, as the Crown, ownership of all the land in England which was granted to the public in return. These concepts were refined and further codified for centuries until the beginning of 1926 which embraced a noteworthy surge of legislative reforms, including the Law of Property Act 1925 (LPA 1925) and the Land Registration Act 1925.
Since the definition for land is fairly complex and fairly wide, it is essential to establish whether the land includes all items that are on/in it, whether the property is deemed to be personal property that can be taken away, when a property is exchanged in a sale or leased, or it is ‘real ' property that cannot be taken away. Defining land is not as straight forward as one might hope, for there is no single authorative , statutory definition. However a good starting point is the partial definition of “land” in the Law of Property Act 1925 (LPA 1925) S.205 (1) (ix):“Land includes any of tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings(whether the division is horizontal , vertical or made in any other way...”
The definition in this statute leaves a lot to be desired, for a start it is only a partial definition. It begins; “Land includes” and what this means is land may include things that are not mentioned in this definition.
It is very central to the Latin maxim; “ cuius est solum eius est usque ad coleum et ad inferos neccesam” which is usually translated in English to have the following meaning; “ the rights of the surface owner extend upwards to the heavens and downward toward the centre of the earth” .This was cited in the case of Corbett V Hill(1870). One must realise that the aged Latin maxim hardly helps with the definition of land and to what we own. Kevin Gray states that;” whatever the maxim cuius est solum .... to the common lawyer of earlier centuries it has since become obvious that its legal meaning is now heavily qualified by the arrival of more recent technologies . Gray recognises that which, although it is hard to determine land in the modern world we need to take a logical and clear approach.
Section 1(1) of the LPA 1925 states that there are only two estates that are capable of subsisting or being created at law as “freehold” or “leasehold” estates. A freehold estate, also known as an estate in fee simple absolute in possession is an estate that is capable of and has no restrictions on who can inherit it, has no conditions attached to the ownership of the estate and is being currently enjoyed. A leasehold estate, also known as a term of years absolute is a much more limited estate than a freehold, such as a lease which has a fixed duration which is agreed upon at the start. When the lease expires, the estate will regress back to the initial person who granted the lease. The leaseholder will have gained an equitable interest, which are defined in Section 1(3) of the LPA 1925, in the property during the time of his/her occupation as leaseholder.
Law of Property Act 1925(LPA 1925), Land Registration Act 1925/2002 (LRA 1925/2002)
The aims of English property law was extensively restructured in 1925 due to its complexities and irregularities, this has been carefully and precisely summarised. It has been the policy of the law for over a hundred years to simplify and facilitate transactions in real property. One of the most notable changes brought in by the 1925 legislation was the expansion of the registered land system.
According to Megarry and Wade, "The dilemma of English land law is how to reconcile security of title with ease of transfer." This statement is particularly relevant in relation to third-party interests in land. Clearly the holders of these rights want them to be protected, whereas the purchaser wants to take free of them. The 1925 legislation provided certainty by simplifying and codifying the existing law and introduced new systems of land holding which offered protection to both the purchaser and the owner of third-party rights. Section 2, LPA 1925 introduced the process of overreaching which converted the equitable interests of beneficiaries into money from the proceeds of the sale of the trust property, thus protecting the purchaser of trust property where the purchase money was paid to at least two trustees. However, not all equitable interests are required to be entered as land charges, and a purchaser of a legal estate in unregistered land takes it subject to all other legal estates, rights and interests, and to those equitable interests of which he or she has knowledge or notice (actual, constructive or imputed). Therefore it is vital that the purchaser make the following searches and enquiries to protect themselves: a) A local land charges search because under s.198 (1) of the LPA 1925, registration constitutes actual notice of the interest and a purchaser will automatically be bound by those charges. However, under s.199(1)(i) if an interest is registrable but is not in fact registered, no other means of notice will affect the purchaser and they will take free from it even if they have knowledge of the interest. Thus the duty is on the third-party to ensure their interests are protected by registration as demonstrated by Midland Bank Trust Co Ltd v Green (1980) which held that an estate contract which was registrable under LCA 1972, s.2(4)(iv) but had not been so registered, was unenforceable against the purchaser even though they knew the charge existed.
b) A land charges search against the names of all the estate owners during the title period because registration is made against the name of the estate owner at the time the charge was created NOT against the address of the property. This has proven problematic,as seen in Oak Co-operative Building Society v Blackburn(1968) where it was held that a registration in a version of an estate owner 's full names was not a nullity against a purchaser who did not search at all or searched in an incorrect name.
It is quite obvious that the deduction of unregistered title deeds can lead to a countless problems resulting in stressful and drawn out dealings. However, the original system introduced by LRA 1925, was not without fault and proposals for a complete replacement of the existing legislation were contained in the consultative document, Land Registration for the twenty-first century. It was widely accepted that the 1925 legislation was both complicated and badly drafted and did not contain the necessary framework to propel conveyancing into the era of e-commerce.
The LRA 2002 is intended to shorten and simplify the conveyancing process, while promoting inevitability for buyers, vendors and anyone who possesses any relevant third-party interests. The goal is to create a truly transparent, accurate and comprehensive Register which will be further supported by the development of a system that allows dispositions of registered land to be handled electronically.
Ownership of registered land is more attractive than its counterpart for many reasons. Where title is registered, it is "regulated and ascertainable from the register alone" subject to any overriding interests. A further benefit is that registration reduces the risk of a purchaser being bound by undiscoverable third-party rights because a purchaser of registered land takes it free from all burdens except for those which are protected by an entry on the register and overriding interests. However, overriding interests are a major hazard for the purchaser of a registered estate. Under LRA 1925 s.70(1), the informal acquisition of land through such methods as resulting and constructive trusts and proprietary estoppel, created rights which were not recorded and not readily discoverable by the reasonably prudent purchaser even after the requisite searches, yet they remained binding on a registered title and its successive registered proprietors. These interests have been the subject of a great deal of litigation and some examples include: Pettit v Pettit (1970) which held that a cohabiter could acquire a beneficial interest in a property where legal title was held by another. In the case of Williams and Glynn’s Bank v Boland (1981) which held that the rights of a beneficiary under a trust, in actual occupation, would be binding on the purchaser. Another interesting case was Webb v Pollmount (1966) where the court held that an option to purchase the reversion contained in a seven-year lease was protected under s. 70(1) by virtue of the tenant’s occupation under the lease. It is clear from the range of issues covered by these decisions that overriding interests are in no way only "minor liabilities". In addition, their existence means that absolute title cannot be absolute.
However, one of the main purposes of the 2002 Act is to reduce the number of overriding interests which are capable of binding a purchaser of a registered title and to replace a significant number of them with registrable entries. To that end a number of minor interests have been abolished while others will be deleted after ten years. In addition, the Act distinguishes between interests that override first registration (schedule1) and those that override subsequent registrable dispositions (schedule 3). The Act also encourages the entry of overriding interests on the register under s.71.
Under LRA 2002, Schedule 3, paragraph 2, occupancy itself is not overriding and the interest must be one affecting the estate. An interest is not protected "if an inquiry was made of the person claiming it before the disposition took place, and they failed to disclose it when they could reasonably have been expected to do so" or if it is "not obvious, on a reasonably careful inspection of the land, that the person claiming it is occupying the land" and/or if the purchaser of the registered title had actual knowledge of the interest. However, the occupier is also burdened in that they must disclose their interests when asked or face revocation of the right to claim an overriding interest. Thus there is a balance between the purchaser and the occupier.
Another significant change to the range of registrable interests involves leases. Under section 3, leases of more than 7 years are now subject to compulsory registration, which means that the majority of commercial leases will now be registered, which in itself increases the accuracy of the register given that historically such leases escaped registration because only leases of greater than 21 years needed to be registered.
The fundamental objective underpinning the reform of the registered title system was to facilitate e-conveyancing. Accordingly Part 8 of the Act sets out the provisions necessary to make such a system an actuality. In principle, once e-conveyancing is a reality, it will remove the gap between transfer and registration (along with the inherent problems), and substantially limit the number of interests created ‘off register’, thus moving towards the ideal that the register should be a "complete and accurate reflection of the state of the title of the land at any given time". Overall, the LRA 2002 improves upon the unregistered system of land by attempting to balance the rights of purchasers with those holding third-party interests.
Adverse Possession
Acquiring land by “Adverse Possession” is the process by which a person who is not the legal owner (e.g. a squatter) of the land can become the owner of the land after occupying it for a defined period of time.Dealing first with unregistered land, to acquire title by adverse possession the squatter must show he has had exclusive possession without the consent of the true owner for 12 years. The most common and best evidence for this is that the land has been fenced off so that only the squatter has access to it. Hence it is very difficult to acquire title to paths and roadways, which many people could use. Similarly, for example i have a neighbour who occasionally parks his car on my land; this would not be a ground for a claim of adverse possession.
Obviously for registered land it is slightly different. The LR A 2002 has reduced the required period to 10 years (the old rules still apply if a person had adverse possession for more than 12 years before the act came into force on Oct 13 2003). The application for adverse possession will be automatically rejected unless the squatter can make out one of three grounds; factual possession Powell V McFarlane, an intention to possess the land and all three criteria has been met for at least 12 years (if the period ends before 13 October 2003) or at least 10 years (if the period ends after 13 October 2003).
Proprietary estoppel and Constructive trust.
Proprietary estoppel is a mechanism derived from equity and its major development was applauded by the leading authority of Yeoman’s Row Management v Cobbe .Moreover, its development was held to be a jurisprudential milestone. Generally, proprietary estoppel can be used both in the domestic and commercial context. On the other hand, it must firstly be briefly stated that the essential elements which must be fulfilled before proprietary estoppel can be invoked are (i) representation made by the owner of the said land in contention, (ii) reliance by the claimant and (iii) detriment incurred by the claimant. Lord Scott in Yeoman’s has described it to be analogous to that of promissory estoppel and his Lordship has further held that ‘promises made as part of an incomplete oral agreement cannot give rise to proprietary estoppel’. This seems to be that the issue regarding promises or future promises are not to be dealt with by proprietary estoppel and this principle is upheld by Lord Scott in Thorner v Major(2009) that instances involving promises of future interest are to be dealt with through the application of elements or principles of a constructive trust as it was in his opinion that proprietary estoppel is better off confined to instances involving unconditional representations regarding the said property in contention. In relation to the first element of representation mentioned above, the Court of Appeal has held that in Thorner v Majors , there must be a clear and unequivocal promise whether express or implied for proprietary estoppel to suffice. It must be noted that proprietary estoppel worked as a single source of rights and it can never be invoked merely based on hopes. The other elements such as reliance made by the claimant and detriment caused are easily proven as it is similar to that of the principles of a constructive trust. In accordance to the element of reliance or in other words, expectation of a beneficial entitlement, the claimant had to believe that the representation or promise made to him was both binding and irrevocable and this issue has already been dealt by Lord Walker in Yeoman’s.
Constructive trust is a device which was derived from equity and certain component instruments must be fulfilled before it can be operational. It is operational both in the domestic and commercial context. The components for the working of a constructive trust are (i) common intention, (ii) detrimental reliance by the claimant and (iii) unconscionable denial of rights by the defendant or in other words, the owner of the said land.In a more in-depth view, there is a heavy presumption which ought to be proven and this was the seed of the decision laid down by the authority of Stack v Dowden where it was held that whenever a property is transferred into joint names, it will give rise to a presumption that the beneficial interest is to be the equivalent of a legal interest.In furtherance, regarding the element of detrimental reliance, it must be proven that the claimant has made a material sacrifice in order to obtain a beneficial entitlement.
Taking both constructive trust and proprietary estoppel into account, there are a number of common grounds between the two as according to legal decisions and arguments by academic commentators. Firstly, the ground of conduct which the both operate coincides as it can be deemed that they create a proprietary interest in land where there is not any binding and enforceable contract between the parties. In addition, in the case of Lloyds Bank Plc v Rosset , Lord Bridge delivered a leading speech where his Lordship has held that there are similarities between both the constructive trust and proprietary estoppel where he is of the opinion that the both operates only where there is a finding of ‘agreement, arrangement or understanding’ between the parties that the property is to be shared beneficially before subsequent elements such as reliance and detriment are taken into consideration. It is not surprising that there are many legal judgments and academic commentator who supported this point of view that there are common grounds in between the two doctrines. Not forgetting the writings of Mark Pawlowski, he has held that in both the cases of Gissing and Edwards, ‘equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the claimant’s belief.’ As the common grounds of the two doctrines have already been mentioned above, there are indeed a number of contradicting grounds between the two. A more scrutinising view and study ought to be worked through the elements of the two doctrines to try to pinpoint the differences between them. It was held that the non-necessity to prove detrimental reliance marks a significant point of departure from proprietary estoppel and a potential enlargement of the constructive trust, thus, it can be inferred that detrimental reliance is not a significant element to be proven in order to establish proprietary estoppel. However, the major difference between the two doctrines is that an equitable interest which is created under a constructive trust will suffice on the date of its creation and on the other hand, proprietary estoppel comes into existence from the date of the court’s ruling. The two doctrines are still distinguishable to a lengthy extent, especially by their elements of establishment and their characteristic such as certainty as a crucial factor can be achieved by means of constructive trust and the right of relief for proprietary estoppel.
Trusts of Land and Appointment of Trustees Act 1996
The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) was a result of a recognised need for reform in the part of the Law of Property Act 1925 which dealt with trusts. In particular, the co-owners of property were regarded as having beneficial interests in money and not in the land. Problems arose where partners disagreed over when they wanted to sell a property usually in the case of separation, and this led to situations where spouses and children might find themselves homeless.
Conclusion
It is generally accepted that land law requires a high degree of certainty and stability. Although land rights are fundamental in achieving higher standards of living, certain groups of individuals are consistently left out of land ownership provisions. The law may provide access to land, however, cultural barriers and poverty traps limit minority groups’ ability to own land. In order to reach equality, these groups must obtain adequate land rights that are both socially and legally recognised.

BIBLIOGRAPHY
Textbooks
Bray J, Key Facts: Land Law (4th edn, Hodder Education, 2010)
Bray J, Unlocking the Law : Land Law (3rd edn, Hodder Education, 2010) Harpum C, Bridge S and Dixon M, Megarry and Wade, Law of Real Property (8th edn Sweet & Maxwell ,London 2012)
Dixon M, Modern English Land Law (7th edn, Routledge, 2010)
Dixon M, Principles of Land Law (4th edn, Cavendish, 2002)
Singh R, Study Manual : Land Law ( 1st edn, Brickfields Asia Corporation, 2011)
Electronic Sources
Article
K.Gray, 'Property in Thin Air ' [1991] 2,51
Online journals
M Pawlowski, ‘Estoppel ,Constructive Trust and Unconscionability’ [2006] (12) http://tandt.oxfordjournals.org/content/12/9/10.extract# accessed on 15 March 2013. T Hanstad [2010] Secure Land Rights. Rural Development Institute. http://www.landesa.org/ accessed on 24 March 2013.

Statutes
Land Charges Act 1972
Land Registration Act 1925
Law of Property Act 1925
Land Registration Act 2002
Trusts of Land and Appointment of Trustees Act 1996 Cases Cobbe v Yeoman 's Row Management Ltd [2008] UKHL 55
Corbet vs. Hill [1870] LR 9 Eq 671
Lloyds Bank plc v. Rosset [1991] 1 AC 107.
Midland Bank Trust Co. v Green[ 1981] AC 513 Oak Co-operative Building Society v Blackburn [1968] 2 All ER 117 Pettitt v Pettitt [1970] AC 777
Powell v McFarlane [1979] 38 P & CR 452
Stack v Dowden [2007] UKHL 17.
Thorner v. Majors [2009] UKHL 18.
Webb v Pollmount [1966] 1 Ch 584.

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[ 1 ]. For an examination of the substantive law of Northern Ireland and proposals for its reform, see Survey of the Land Law of Northern Ireland (HMSO Belfast 1971) by a working party of the Faculty of Law, The Queen 's University, Belfast.
[ 2 ]. M Dixon, Modern English Land Law (7th edn, Routledge, 2010) 2.
[ 3 ]. Law of Property Act 1925 s 205(1)(ix).
[ 4 ]. J Bray, Unlocking the Law : Land Law (3rd edn, Hodder Education, 2010) Pg23.
[ 5 ]. Corbet vs. Hill [1870] LR 9 Eq 671.
[ 6 ]. K.Gray, 'Property in Thin Air ' [1991] 2,51.
[ 7 ]. Law of Property Act 1925 s 1(1).
[ 8 ]. Law of Property Act 1925 s 1(3).
[ 9 ]. C Harpum, S Bridge and M Dixon, Megarry and Wade, Law of Real Property (8th edn Sweet & Maxwell ,London 2012).
[ 10 ]. Law of Property Act 1925 s. 2.
[ 11 ]. Law of Property Act 1925 s.198 (1).
[ 12 ]. Law of Property Act 1925 s.199(1)(i).
[ 13 ]. Midland Bank Trust Co. v Green[ 1981] AC 513.
[ 14 ]. Land charges Act 1972 s.2(4)(iv).
[ 15 ]. Oak Co-operative Building Society v Blackburn [1968] 2 All ER 117.
[ 16 ]. M Dixon, Principles of Land Law (4th edn, Cavendish, 2002) Page 29.
[ 17 ]. Pettitt v Pettitt [1970] AC 777.
[ 18 ]. Webb v Pollmount [1966] 1 Ch 584.
[ 19 ]. Law of Property Act 1925 S. 70(1).
[ 20 ]. M Dixon, Modern English Land Law (7th edn, Routledge, 2010) Page 28.
[ 21 ]. Land Registration Act 2002 Sch 3 para 2.
[ 22 ]. J Bray, Key Facts: Land Law (4th edn, Hodder Education, 2010) Page 20.
[ 23 ]. J Bray, Unlocking the Law : Land Law (3rd edn, Hodder Education, 2010) Pg 70.
[ 24 ]. Powell v McFarlane [1979] 38 P & CR 452.
[ 25 ]. Available at http://books.google.com.my/books?id=98dfop1OAHAC&pg=PA431&lpg=PA431&dq=powell+v+mcfarlane&source=bl&ots=-9wUgIB6Vz&sig=_SeD4-HdXEsNTKomj1HiaY4LIbo&hl=en&sa=X&ei=lAtPUfCvNofUrQe5uIHwCg&ved=0CFQQ6AEwBw#v=onepage&q=powell%20v%20mcfarlane&f=false
[ 26 ]. Cobbe v Yeoman 's Row Management Ltd [2008] UKHL 55.
[ 27 ]. Thorner v. Majors [2009] UKHL 18.
[ 28 ]. Ibid, UKHL 18.
[ 29 ]. Ibid, UKHL 55.
[ 30 ]. Stack v Dowden [2007] UKHL 17.
[ 31 ]. Lloyds Bank plc v. Rosset [1991] 1 AC 107.
[ 32 ]. Ibid AC 107.
[ 33 ]. M Pawlowski, ‘Estoppel ,Constructive Trust and Unconscionability’ [2006] (12) http://tandt.oxfordjournals.org/content/12/9/10.extract# accessed on 15 March 2013.
[ 34 ]. R Singh, Study Manual : Land Law ( 1st edn, Brickfields Asia Corporation, 2011) page 144.
[ 35 ]. T Hanstad [2010] Secure Land Rights. Rural Development Institute. http://www.landesa.org/ accessed on 24 March 2013.

Bibliography: Textbooks Bray J, Key Facts: Land Law (4th edn, Hodder Education, 2010) Bray J, Unlocking the Law : Land Law (3rd edn, Hodder Education, 2010) Harpum C, Bridge S and Dixon M, Megarry and Wade, Law of Real Property (8th edn Sweet & Maxwell ,London 2012) Dixon M, Modern English Land Law (7th edn, Routledge, 2010) Dixon M, Principles of Land Law (4th edn, Cavendish, 2002) Singh R, Study Manual : Land Law ( 1st edn, Brickfields Asia Corporation, 2011) Electronic Sources [ 2 ]. M Dixon, Modern English Land Law (7th edn, Routledge, 2010) 2. [ 4 ]. J Bray, Unlocking the Law : Land Law (3rd edn, Hodder Education, 2010) Pg23. [ 9 ]. C Harpum, S Bridge and M Dixon, Megarry and Wade, Law of Real Property (8th edn Sweet & Maxwell ,London 2012). [ 16 ]. M Dixon, Principles of Land Law (4th edn, Cavendish, 2002) Page 29. [ 20 ]. M Dixon, Modern English Land Law (7th edn, Routledge, 2010) Page 28. [ 22 ]. J Bray, Key Facts: Land Law (4th edn, Hodder Education, 2010) Page 20. [ 23 ]. J Bray, Unlocking the Law : Land Law (3rd edn, Hodder Education, 2010) Pg 70. [ 34 ]. R Singh, Study Manual : Land Law ( 1st edn, Brickfields Asia Corporation, 2011) page 144.