Core principles of land law - Nature of land

Learning Outcomes

This article explains the core principles governing the nature of land in English law, including:

• the statutory meaning of “land” and the distinction between corporeal and incorporeal components, including practical limits on airspace, subsoil and minerals
• the fixture/chattel two-stage test, its application to common items, and special categories such as trade and tenant’s fixtures
• the legal estates that can subsist at law and the role of commonhold in structuring multi-unit developments
• the main interests capable of existing as legal rights and those that arise or subsist only in equity
• the legal–equitable divide, how rights become equitable when formalities are not satisfied, and the consequences for enforceability and priority
• the formalities required for creating and transferring estates and interests, including deed and contract requirements and when registration is necessary for a right to operate at law
• methods of protecting rights in registered and unregistered land, including notices, restrictions, land charges, overriding interests, and the effect of first registration and later dealings on priority.

SQE2 Syllabus

For SQE2, you are required to understand the nature of land, including its statutory definition, the distinction between fixtures and chattels, the main legal estates and interests, and the formalities for creating, transferring and protecting rights, with a focus on the following syllabus points:

• the statutory meaning of “land” in England and Wales and how it is applied in practice
• the distinction between fixtures and chattels
• the main types of estates and interests (legal and equitable) that exist in land law
• how legal and equitable rights are created, transferred, and protected
• which formalities are required for legal and equitable rights to be valid and enforceable.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the legal test for deciding whether an object attached to land is a fixture or a chattel?
2. Name the two types of legal estates that are recognised under English land law.
3. How does a legal interest differ from an equitable interest in land?
4. Give two examples of interests in land that can only ever be equitable.

Introduction

Land law sets out what counts as “land,” how it can be held, and the bundles of rights that might exist over it. Beyond physical soil and buildings, land encompasses intangible components (e.g., easements) and is bounded by important limits (such as realistic boundaries to airspace and state control of certain minerals). Working confidently with land questions requires a disciplined approach: identify the relevant estate or interest, confirm whether it is legal or equitable, check that formalities have been satisfied, and confirm how (and whether) the right is protected against third parties.

What is Land?

The statutory definition is provided by the Law of Property Act 1925.

Key Term: land
Land includes land of any tenure, mines and minerals (whether or not held apart from the surface), buildings or parts of buildings, and both corporeal and incorporeal hereditaments. It extends to rights “in, over, or derived from land.”

This broad definition embraces:

• corporeal hereditaments: tangible features that can be inherited, such as soil, rocks, buildings, trees and plants
• incorporeal hereditaments: intangible rights attached to land, such as easements, profits, rents, and rights of entry.

In practice, several details matter:

• Buildings or parts of buildings include vertical and horizontal divisions, allowing separate titles for floors, rooms or structural elements. This underpins modern registration for flats and parts of buildings and may give rise to “flying freeholds,” where part of the building overhangs another estate.
• Airspace belongs to the landowner only to such height as is necessary for ordinary use and enjoyment of the land. Aircraft and drones flying well above that height do not trespass; low-level intrusions that physically interfere with use and enjoyment may do so.
• Subsoil rights are limited: coal and certain petroleum resources are controlled by statute. Landowners may still own other minerals and subsoil, but statutory regimes can reserve or regulate extraction.
• Running water does not “belong” to the landowner; while rights may exist to fish or abstract water in limited ways, control of streams and abstraction is regulated.

Fixtures and Chattels

A distinction is drawn between items attached to land (fixtures) and items that remain separate (chattels). The classification matters because fixtures pass automatically with the land on a disposition; chattels do not unless expressly agreed.

Key Term: fixture
An item sufficiently annexed to land or a building, and attached for the purpose of improving or permanently benefiting the land or building.

Key Term: chattel
A movable item that remains personal property and is not annexed to the land for the land’s permanent benefit.

The Two-Stage Test

The accepted test has two stages:

1. Degree of annexation: How and how firmly is the item attached? If removal would cause material damage to the land or the item, this points to a fixture.
2. Purpose of annexation: Why was the item attached? If to improve the land (e.g., part of a fitted kitchen or permanent bathroom fitments), it is likely a fixture; if attached merely for the better enjoyment of the item (e.g., a picture hung on screws), it is likely a chattel.

Trade and tenant’s fixtures add important detail. In landlord–tenant contexts, items installed by the tenant for business use (trade fixtures) and certain tenant’s fixtures may be removable by the tenant during or at the end of the lease, subject to terms and the duty to make good any damage. Domestic fixtures generally cannot be removed without agreement.

Exam Warning

Do not treat the degree of annexation as decisive. The dominant factor is commonly the purpose of annexation. An item integrally forming part of a designed scheme (e.g., custom built-in wardrobes or an inset hob) will usually be a fixture even if modern fixings make removal easier.

Worked Example 1.1

Saira installs a built-in oven and a washing machine in her kitchen before selling her house. The buyer claims both should transfer with the house. Which is a fixture?

Answer:
The built-in oven is a fixture: removing it would damage the kitchen units. The washing machine, connected by hoses and plugged in, is a chattel and does not automatically transfer.

Worked Example 1.2

A garden centre owner builds a conservatory in the garden that is bolted to the ground. Does the conservatory pass to a new buyer if not otherwise agreed?

Answer:
Yes, the conservatory is a fixture: it is annexed to the land and was likely installed to improve the land. It automatically passes on sale.

Worked Example 1.3

A landlord replaces freestanding wardrobes with made-to-measure built-in wardrobes screwed into studs and skirting, matching a room’s panelling. On sale, are they fixtures?

Answer:
Yes. The degree of annexation is significant, but the dominant factor is that the wardrobes form part of an integrated design intended to improve the room; they are fixtures that pass with the land.

Estates in Land

Modern law recognises only two legal estates.

Key Term: freehold estate
Fee simple absolute in possession: the estate is capable of lasting indefinitely, is not conditional, and carries a present right to possession or receipt of rent.

Key Term: leasehold estate
Term of years absolute: a right to exclusive possession for a fixed maximum duration. The term need not be for years; it can be for days, months or weeks provided it is certain.

A freehold owner may carve out one or more leasehold estates. When a lease ends by effluxion of time, the tenant’s leasehold estate is extinguished and the freeholder’s reversionary interest ceases to be burdened by that lease.

A third tenure—commonhold—exists but remains rare in practice.

Key Term: commonhold
A freehold system for multi-unit buildings where each unit holder owns the freehold of their unit and is a member of an association that owns and manages the common parts under a standard statement.

Interests in Land

Interests are rights over land held by someone other than the estate owner. Some are capable of existing at law if formalities are met:

• easements (e.g., rights of way, rights to use pipes, rights of support)
• mortgages (a security interest granted by the landowner)
• profits à prendre (e.g., rights to take natural produce like fish or timber)
• rentcharges (periodic payments charged on land, now rare save for estate rentcharges)
• rights of entry (e.g., a landlord’s right to forfeit a lease).

Key Term: legal interest
A right falling within the list of legal interests set by statute that is created by deed and (for registered estates) completed by registration so as to be enforceable against the world.

Interests outside that list, or interests created without the requisite formalities, can exist in equity.

Key Term: equitable interest
A right in land that falls outside the statutory list of legal interests or arises where formalities are not fully met, but is enforceable in equity against most parties subject to recognised protections.

Common equitable interests include restrictive covenants, estate contracts (options and rights of pre-emption), and beneficial interests under trusts.

Legal and Equitable Rights in Land

The legal/equitable distinction affects creation, protection and enforcement:

• Legal interests bind the world. They require a deed and, for registrable dispositions of registered land, registration to take effect in law.
• Equitable interests bind all except a bona fide purchaser for value of a legal estate without notice in unregistered land, and are protected by notices or restrictions (and sometimes override) in registered land.

For registered land, rights are protected by:

Key Term: notice
An entry on the charges register that publicises a third-party interest (e.g., restrictive covenant or estate contract) to ensure a purchaser takes subject to it.

Key Term: restriction
An entry on the proprietorship register that regulates how dispositions may be made (e.g., preventing registration unless the purchaser has overreached beneficial interests by paying two trustees).

Some interests do not require registration to bind, because they are overriding.

Key Term: overriding interests
Interests which, though not substantively registered, bind a purchaser. They include legal leases of seven years or less, certain legal easements, and interests of persons in actual occupation—subject to statutory exceptions.

In unregistered land, many equitable interests are protected by registering a land charge against the estate owner’s name. Failure to register the correct class can render the right void against a purchaser for value.

Formalities for Creation and Transfer

Formalities ensure certainty and determine whether a right takes effect at law or only in equity.

• Creation or transfer of a legal estate or legal interest normally requires a deed that is clear on its face, signed, witnessed and delivered.

Key Term: deed
A written instrument clear on its face that it is a deed, validly executed (signed and witnessed) and delivered by the executing party with the intention to be bound.

• Contracts to create or transfer rights in land must be in writing, incorporate all agreed terms and be signed by the parties.
• For registered land, certain dispositions must be completed by registration to take effect at law (e.g., transfer of a registered estate, grant of a legal lease over seven years, grant of a legal easement or mortgage).
• A short legal lease not exceeding three years can be created without a deed if granted in possession, at the best rent reasonably obtainable and without a fine.

If formalities for a legal right are not met, equity may recognise the right (e.g., an equitable lease or equitable mortgage) provided the contract requirements are satisfied.

Registration requirements differ:

• First registration is required when specified trigger events occur in unregistered land (e.g., transfer of freehold for value, grant of a lease over seven years, first legal mortgage). If not registered in time, the disposition may be void as regards the legal estate but can subsist in equity.
• Later dealings with registered estates must be entered in the register to take effect at law. Failure to register can leave the right equitable only and affect priority.

Revision Tip

When analysing any right over registered land, ask: (1) is it a registrable disposition that must be registered to take effect at law? (2) if not registrable, does it override? (3) if equitable, is it protected by a notice or restriction?

Worked Example 1.4

A buyer agrees in writing to purchase a registered freehold and receives a signed contract incorporating all terms. The seller then grants an option to a third party the day before completion, and the option is entered as a notice on the register. Does the buyer take subject to the option?

Answer:
Yes. An option is an estate contract that should be protected by notice. The buyer’s later registration cannot displace a prior protected interest. Absent special priority protection, the buyer takes subject to the earlier noted option.

Worked Example 1.5

A home is sold from a sole registered proprietor. Their partner has contributed to the purchase price and is still living at the property, but no notice or restriction is entered. The buyer pays the price to the sole proprietor, moves in, and later discovers the partner’s claim. Is the buyer bound?

Answer:
It depends. A beneficial interest under a trust can override where the beneficiary is in actual occupation at completion, unless the interest was not disclosed upon reasonable enquiry or would not be obvious on a reasonable inspection and the buyer had no knowledge. If the partner was in actual occupation and the statutory exceptions do not apply, the buyer may be bound. If the price was paid to two trustees (or a trust corporation), the interest would have been overreached and detached from the land.

Exam Warning

A frequent pitfall is conflating the contract requirement (writing and signature under the statutory contract rule) with the deed requirement for legal dispositions. A valid contract alone does not create a legal estate or interest; it creates an equitable right. The legal estate or interest must be completed by deed (and, for registered land, by registration where required).

Revision Tip

Use a checklist for any right encountered:

• Is it an estate or an interest?
• Is it legal or equitable?
• Were the correct formalities used (contract and deed)?
• Does the right require registration to take effect at law, or is it protected by notice/restriction?
• In registered land, does it override (e.g., actual occupation), or has it been overreached?

Key Point Checklist

This article has covered the following key knowledge points:

• Land is defined widely and includes both tangible features and intangible rights (corporeal and incorporeal hereditaments), with practical limits on airspace, subsoil and running water.
• The fixture/chattel distinction is essential: degree and purpose of annexation must be analysed; fixtures pass with the land and chattels do not.
• Freehold and leasehold are the only legal estates; commonhold provides a freehold framework for multi-occupancy schemes.
• Interests (e.g., easements, profits, rentcharges, mortgages, rights of entry) can be legal if formed by deed and (for registered land) registered; other rights may take effect in equity.
• Legal and equitable rights differ by creation, protection and enforceability; equitable rights are protected differently in registered and unregistered systems.
• In registered land, registrable dispositions must be completed by registration to take effect at law; some interests override; notices and restrictions protect others.
• In unregistered land, equitable interests (and puisne mortgages) are protected by land charges against names; failure to register can render the interest void against a purchaser for value.
• Formalities matter: a deed is generally required for legal rights; short leases have a statutory exception. Contracts must be in writing and signed to be valid.
• Overreaching can detach beneficial interests under trusts from land when purchase money is paid to two trustees or a trust corporation.
• Always test priority: the timing of creation, protection and registration determines whether later purchasers take subject to or free of rights.

Key Terms and Concepts

• land
• fixture
• chattel
• freehold estate
• leasehold estate
• commonhold
• legal interest
• equitable interest
• notice
• restriction
• overriding interests
• deed