Land Law Notes: Guide for Solicitors

Introduction

Land law governs ownership, use, and transfer of real property in England and Wales. It spans estates and interests, the split between legal and equitable rights, conveyancing for both registered and unregistered titles, co-ownership, easements and covenants, landlord and tenant, and mortgages.

For trainee solicitors and SQE candidates, the material can feel detailed, but it becomes manageable when arranged into clear topics with examples and practical steps. This guide turns the main themes into a scannable study aid you can use in both exam preparation and day-to-day practice.

What You’ll Learn

• The difference between freehold and leasehold, and legal versus equitable interests
• How the Land Registration Act 2002 works, and how it compares with unregistered conveyancing
• Co-ownership structures: joint tenancy, tenancy in common, and severance
• Easements and covenants: creation, enforcement, and registration
• Leases and leasehold covenants, including the Landlord and Tenant (Covenants) Act 1995
• Mortgages: creation, mortgagee powers, and the borrower’s right to redeem
• Key cases: Williams & Glyn’s Bank v Boland, City of London Building Society v Flegg, Stack v Dowden
• Practical checks: actual occupation, overreaching, restrictions, and enquiries of occupiers

Core Concepts

Estates: Freehold and Leasehold

• Only two legal estates exist:

  • Freehold: fee simple absolute in possession
  • Leasehold: term of years absolute
  • Authority: Law of Property Act 1925 (LPA 1925) s.1

• Creation and formalities:

  • Most dispositions of land require a deed (LPA 1925 s.52)
  • Short legal leases for three years or less at best rent can be created without deed (LPA 1925 s.54(2))
  • A lease gives exclusive possession for a fixed or periodic term; rent is not essential (Street v Mountford [1985])

Legal and Equitable Interests

• Legal interests (LPA 1925 s.1(2)) include:

  • Legal easements and profits
  • Rentcharges
  • Charges by way of legal mortgage
  • Rights of entry

• Equitable interests arise through:

  • Trusts (express, resulting, constructive)
  • Proprietary estoppel
  • Contracts compliant with s.2 Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989) (e.g., a contract to grant an easement)

• Formalities and priority:

  • Legal rights bind the world once properly created and, in registered land, completed by registration if required
  • Equitable rights often require entry of a notice (registered land) or registration as a land charge (unregistered land) to bind a purchaser
  • In unregistered land, some equitable interests are governed by the Land Charges Act 1972; others may depend on the doctrine of notice

Registered vs Unregistered Land

• Registered land (LRA 2002):

  • The register has three parts: Property, Proprietorship, Charges
  • Certain dispositions (e.g., transfers, legal mortgages, express legal easements) must be completed by registration to operate at law (LRA 2002 s.27)
  • Some interests bind despite not being recorded (overriding interests), notably interests of persons in actual occupation (Schedule 3, para 2), subject to exceptions

• Unregistered land:

  • Title is proved by title deeds and a good root of title
  • Many equitable rights are registrable as land charges (Land Charges Act 1972); if not registered, a purchaser may take free
  • Other equitable rights may bind where the purchaser has actual, constructive, or imputed notice

Co-ownership: Joint Tenancy and Tenancy in Common

• Forms of co-ownership:

  • Joint tenancy: no distinct shares; survivorship applies
  • Tenancy in common: distinct but undivided shares; no survivorship

• Legal vs equitable title:

  • Legal title can only be held as a joint tenancy (max four trustees)
  • The beneficial title may be a joint tenancy or tenancy in common

• Severance:

  • A joint tenancy can be severed to create a tenancy in common in equity
  • Methods include written notice (LPA 1925 s.36(2)), mutual agreement, or conduct (Williams v Hensman (1861))
  • In registered land, a Form A restriction signals that no disposition by a sole proprietor is to be registered without evidence of two trustees or a trust corporation (helps ensure overreaching)

Easements

• Definition and characteristics:

  • A right enjoyed over another’s land (e.g., right of way, drainage, light)
  • Classic features from Re Ellenborough Park [1956]: a dominant and servient tenement, accommodation of the dominant land, different owners, and a right capable of precise definition

• Creation:

  • Express grant or reservation by deed (LPA 1925 s.52), and in registered land, completion by registration if an express legal easement (LRA 2002 s.27)
  • Implied grant/reservation (necessity, common intention, Wheeldon v Burrows)
  • Prescription (long use as of right)

• Priority and registration:

  • In registered land, many implied or prescriptive legal easements can override (LRA 2002 Sch 3 para 3)
  • Equitable easements usually require a notice on the register to bind purchasers (registered land) or registration as a land charge (unregistered land)

Covenants

• Types:

  • Positive covenants: require action (e.g., maintain a fence)
  • Restrictive covenants: impose a restriction (e.g., no building)

• Enforcement:

  • Benefit can run at law or in equity if conditions are met
  • Burden of a restrictive covenant can run in equity if the covenant is negative, benefits land, the parties intended it to run, and the purchaser has notice/registration (Tulk v Moxhay)
  • Positive covenants generally do not bind successors to freehold; workarounds include chains of indemnity, rentcharges, and building schemes

• Registration:

  • Registered land: enter a notice to bind buyers (LRA 2002 s.32)
  • Unregistered land: register as a Class D(ii) land charge; failure to register may free a purchaser for money

Leases and Leasehold Covenants

• Lease essentials:

  • Exclusive possession for a term; rent not essential post-Street v Mountford
  • Creation by deed unless a short lease under LPA 1925 s.54(2)

• Covenants and passing of obligations:

  • Before 1 January 1996: privity of contract and privity of estate govern liability
  • On and after 1 January 1996: Landlord and Tenant (Covenants) Act 1995 regime applies; liability generally passes on assignment, and outgoing tenants may be released unless an authorised guarantee agreement (AGA) is given

• Common provisions:

  • Quiet enjoyment; repair; user; alienation; rent review; service charge; forfeiture for breach

Mortgages and Charges

• Creation:

  • Most residential and commercial mortgages are created by a charge by deed expressed to be by way of legal mortgage (LPA 1925 s.87)

• Mortgagee powers:

  • Power of sale arises when a mortgage is made by deed (LPA 1925 s.101), with conditions before exercise (s.103)
  • Right to possession can arise before default unless excluded by agreement (subject to court’s discretion in residential cases)
  • Power to appoint a receiver

• Duties and borrower protections:

  • Mortgagee must act in good faith and take reasonable care to obtain the proper price on sale (Cuckmere Brick Co v Mutual Finance)
  • The borrower’s right to redeem cannot be clogged or fettered; collateral advantages must not make redemption illusory

Key Examples or Case Studies

Williams & Glyn’s Bank Ltd v Boland [1981] AC 487

• Context: A wife contributed to the purchase price but was not a registered owner. The husband mortgaged the home.
• Point: Her equitable interest coupled with actual occupation bound the bank as an overriding interest.
• Takeaway: Always check who is in occupation and whether they have a beneficial interest. Obtain consent or resolve the interest before completion.

City of London Building Society v Flegg [1988] AC 54

• Context: Parents contributed to the purchase price but were not on the legal title. The legal owners mortgaged the property and received the money.
• Point: Overreaching transferred the parents’ equitable interests from the land to the sale proceeds because payment was made to two trustees.
• Takeaway: Payment to two trustees (or a trust corporation) can overreach beneficial interests, leaving the buyer or lender free of those interests.

Stack v Dowden [2007] UKHL 17

• Context: A cohabiting couple bought in joint names but contributed unequally and kept finances largely separate.
• Point: The presumption of equal beneficial shares for joint owners can be displaced by evidence of different common intention, assessed from the whole course of dealings.
• Takeaway: In co-ownership disputes, look beyond initial contributions to how the parties managed their money, property arrangements, and intentions over time.

Practical Applications

• Registered title checks:

  • Review the Property, Proprietorship, and Charges Registers
  • Look for restrictions (e.g., Form A) and notices of third-party rights
  • Confirm whether any express easements or charges require completion by registration

• Occupiers and overriding interests:

  • Ask pre-contract enquiries about adult occupiers and contributors to the price
  • Inspect the property to spot actual occupation
  • Obtain occupier consents, deeds of postponement, or arrange completion steps to manage risk

• Overreaching in sales and mortgages:

  • Ensure purchase money or advance is paid to at least two trustees or a trust corporation where there are beneficial interests
  • Check that restrictions on the register have been satisfied

• Unregistered land steps:

  • Deduce title with a good root and review the chain of ownership
  • Search the Land Charges Register for registrable equitable rights
  • Assess whether any equitable rights may bind via notice principles

• Easements and covenants:

  • Verify routes of access and services; confirm rights exist and are adequate
  • For restrictive covenants, check for notices (registered land) or land charges (unregistered) and consider s.84 LPA 1925 applications to modify/discharge if needed

• Leases:

  • Confirm the grant formalities (deed or short lease)
  • Review user, repair, alienation, service charge, and forfeiture clauses
  • For assignments, apply the correct liability regime (pre/post 1996) and consider AGAs

• Mortgages:

  • Confirm the form of charge, priority, and any consent requirements
  • Advise borrowers on redemption rights and the lender’s duties on sale
  • For lenders, ensure conditions for power of sale are satisfied and valuation is robust

• Co-ownership:

  • Record beneficial shares with a declaration of trust
  • To end survivorship, serve a clear written notice of severance and record a Form A restriction
  • In disputes, gather evidence of contributions and day-to-day arrangements

Summary Checklist

• Know the two legal estates and how they are created (LPA 1925 ss.1, 52, 54(2))
• Distinguish legal from equitable interests and apply the correct formalities (LP(MP)A 1989 s.2)
• For registered land, identify dispositions needing registration and check for overriding interests (LRA 2002 s.27; Sch 3)
• For unregistered land, use title deeds, land charges searches, and notice principles
• Co-ownership: joint tenancy vs tenancy in common, severance (LPA 1925 s.36(2)), and Form A restrictions
• Easements: creation (express, implied, prescriptive), and when they override
• Covenants: enforceability of restrictive covenants; positive covenants workarounds; registration requirements
• Leases: exclusive possession for a term, key covenants, and LT(C)A 1995 rules for assignments
• Mortgages: creation by legal charge, power of sale conditions, borrower’s right to redeem, and lender’s duty on sale
• Apply Boland (actual occupation), Flegg (overreaching), and Stack (beneficial shares)

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