Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

5.Redundancy of words of limitation after registration of title

[3.21] A positive advantage of the registered system is the ease of identification of the estate being dealt with. The property register states whether land is freehold or leasehold. A transfer merely passes whatever title is identified by the title number from one proprietor to the next, and it is never necessary to include words of limitation to define the estate being dealt with52 and these are omitted from the prescribed forms.53 Leases, mortgages, grants of easements and other derivative transactions use distinctive prescribed forms54 which speak for themselves.

G. TRANSFER OF THE FREEHOLD ESTATE

[3.22] Today’s legal freehold estate55 is best described in terms of how it reacts to the various operations performed on it – sale, gift, inferior transactions and the transmissions which occur on death or bankruptcy.

1.Sale by substitution

[3.23] Ownership of property carries with it the right to realise the property by turning it into cash, most obviously by sale of the freehold estate to a buyer. So the current owner is allowed to transfer the whole of his ownership right to another person who becomes owner for the future. This is a given for any capitalist system of property law.

Historically the right of sale had to be wrested from the Crown. The fee simple began as a feudal grant by a lord to a vassal (A) on the terms that when A died the land passed automatically to his eldest son as heir.56 The son’s potential right prevented sale by A. However, the heir could be disinherited by subinfeudation, that is by making a new feudal grant of the land to B and his heirs in turn. This logic was broken by the statute Quia Emptores 1290,57 which prohibited subinfeudation but instead permitted unhindered sale by substitution. This means that the existing estate is transferred. If A sells to B, B’s family become notionally entitled to the land in place of A’s, though their entitlement is only notional because B may in turn sell the land before he dies or make a will leaving nothing for his family to take. Sale by substitution occurs today whenever freehold land is transferred. Thus:

52AJ Dunning (Shopfitters) v. Sykes & Son (Poole) [1987] Ch 287, 302E, Dillon LJ.

53Eg a transfer required LR Form TR1.

54DLRR 2003 sch 1.

55Much of what is said also applies to leasehold estates.

56To A and his heirs; see above [3.18].

57Statute of Westminster III, 18 Edw I (1290) ch II; later extended to tenants in chief: 1 Edw 3 (1327) st 2 chs 12–13; 34 Edw 3 (1360) ch 5; Megarry & Wade (6th ed), [2.040–2.043].

[3.24] Quia Emptores was not consolidated in 1925 and remains one of the oldest extant property law statutes,58 operating whenever freehold land is sold to divert the freehold estate from seller to buyer. In practice the feudal tenure has been emasculated and has disappeared from view, and the link between freehold land and the heir was broken in 1925, leaving a perpetual fee simple. Thus in practice:

Figure 3-2 Sale by substitution

Even a transfer of registered land is technically a feudal substitution. Any sale now requires completion by registration of the buyer’s title.

As explained elsewhere59 Quia Emptores also guarantees the saleability of freehold land by invalidating restrictions on sale.

2.Other substitutions

[3.25] Any transfer of a freehold estate effects a substitution, for example where a gift is made.60 When a freehold estate owner dies,61 the estate will not end, but rather it will devolve on his personal representatives. Estate owners can choose how their land is to pass after their death by making a gift of the land by will, or otherwise they can leave beneficial entitlement to be determined by the intestacy rules. If the estate owner

58WS Holdsworth (1926) 42 LQR 158; it is beaten by De Donis Conditionalibus 13 Edw I (1285) ch 1.

59See below [3.26].

60An important element of a gift is the donee’s consent: J Hill (2001) 117 LQR 127; W Swadling “Property” ch 4 in Birks’ English Private Law, [4.379–4.398].

61See below [14.23].

becomes bankrupt the estate will transfer to his trustee in bankruptcy.62 In a few anomalous and now rare cases these devolutions may cause the estate to end and the land to escheat to the Crown.63

H. FREEDOM OF SALE

[3.26] Where possible the policy of the law is to prefer alienability to inalienability.64

1.Preservation of transactional power

[3.27] Quia Emptores 129065 established the right of free sale of land, which we take for granted today and by implication also invalidates conditions which prevent or restrict dispositions. In Merttens v. Hill66 there was a custom in the manor of Rothley, Leicestershire, by which the Lord of the Manor exacted a fine on any sale to a foreigner (meaning any person from outside the village). The fine was fixed at one shilling for each pound of the price (5%), a sum was so large that it could not have been in existence in 1189, the notional legal origin of customs. Hence, the Lord of the Manor was asserting a right to restrict any sale, in contravention of Quia Emptores,67 a condition which the court held to be repugnant68 to the freehold interest and so void. A landlord has a genuine interest in the financial health of his tenant, so the law has always allowed restrictions to be put on the sale and dealings with a lease.69

Land is given to the National Trust on the basis that it will be inalienable, though this restriction can be overcome by a court order authorising a lease.70

2.Conditions attached to gifts

[3.28] The common law regarded all attempts to restrict sale with extreme disfavour,71 but the case-law on conditions in wills reveals a lack of consistency. A condition which completely excludes any power of disposition is void72 – for example to let at a fixed rent, to cultivate in certain manner, or not to mortgage73 – whether disposition is prevented for ever or for life.74 Nor can the right to sell be restricted to

62See below [28.46].

63See below [3.60].

64Bettison v. Langton [2000] Ch 54, 71H, Robert Walker LJ.

65See above [3.23].

66[1901] 1 Ch 842, Cozens-Hardy J.

67Fines on alienation of land held directly of the Crown were abolished in 1660 and on copyhold land in 1925.

68It would be better to say that it infringed the rule of public policy which allows free sale: GL Williams (1943) 59 LQR 343.

69See below [27.05ff].

70National Trust Act 1907 s 21; Wentworth v. National Trust [1985] Conv 134.

71Re Ashforth [1905] 1 Ch 535, 542, Farwell J.

72Re Dugdale (1888) 38 Ch D. 176; Bradley v. Peixoto (1797) 3 Ves 324, 30 ER 1034.

73Corbett v. Corbett (1888) 14 PD 7, CA; Ware v. Cann (1830) 16 B & C 433, 109 ER 511.

74Re Rosher (1884) 26 Ch D 801 (son not to sell during widow’s lifetime); Re Dugdale (1888) 38 Ch D 176, Kay J.

a particular class of buyers. In Re Brown75 a father left property after the death of his widow, to their four sons (when all were adult) in equal shares, subject to a condition which forfeited the share of any son who tried to sell other than to one of his brothers. The permitted class of buyers was small and diminishing, and so the condition restricting sale was held to be void.

Illogically, partial restraints are sometimes valid,76 provided they avoid being racially or sexually discriminatory.77 Thus a covenant preventing sale to a specified person is valid, as is a restriction on sale to a particular class. In Re Macleay,78 a devise “to my brother John on condition that he never sells out of the family” was accepted, since forms of disposition other than sale were possible and the family was reasonably large. Though this case has been subject to strong criticism,79 it was accepted as a definitive statement of the law in Re Brown.80

A person seeking to impose a condition on the sale of land is likely to use a trust. The law of settlements displays a deep schizophrenia about the extent to which sale can be restrained. Its historical function of preventing the sale of land has been replaced by a modern attitude favouring sale, though it is not carried through with absolute consistency.81

I.RENTCHARGE CONVEYANCES

[3.29] Rent represents payment by time for the use of the land. A rent is usually a rent-service payable to a landlord under a lease, but when it is reserved out of freehold land it is called a rentcharge.82 In the past, before the ready availability of building society mortgage finance, legal rentcharges were used to facilitate the purchase of freehold land. This form of tenure was concentrated in South Wales and Manchester. A house would be sold by a builder freehold, taking some of the purchase price as a capital sum at the time of sale, but also reserving a rentcharge in perpetuity.

Creation of new legal rentcharges as a source of profit was prohibited by the Rentcharges Act 1977.83 Pre-existing rentcharges may continue until most are extinguished 60 years after the passing of the Rentcharges Act 1977,84 though many are redeemed either by agreement or under compulsory provisions.85 The 1977 Act was intended to remove an obsolete form of tenure, but it has in fact led to explosion in the use of “estate rentcharges”, a safe and sure way to impose the cost of repairs on

75[1954] Ch 39, Harman J; Caldy Manor Estate v. Farrell [1974] 1 WLR 1303.

76Authorities are summarised in Re Brown [1954] Ch 39, Harman J.

77Race Relations Act 1976 s 21; Sex Discrimination Act 1975 s 30.

78(1875) LR 20 Eq 186; Attwater v. Attwater (1853) 18 Beav 330, 52 ER 131, distinguished.

79Doubted in Re Rosher (1884) 26 Ch D 801, 814–821, Pearson J; E Jenks (1917) 33 LQR 11.

80[1954] Ch 39, 47–48, Harman J.

81See below [14.10ff].

82Rentcharges Act 1977 s 1 defines a rentcharge as any annual or other periodic sum charged on or issuing out of land except (a) rent reserved by a lease or tenancy or (b) interest payments.

83S 2(1)(2), in force August 22nd 1977; see below [3.29ff].

84S 3(1); the 60 year period runs from July 22nd 1977 or the date when rentcharge is first payable if later.

85Ss 8–10.

landowners.86 Family rentcharges designed to provide an income to a family member for life can still be created under a trust.87

Rentcharges are invariably paid if the rent owner presses for payment, since a Victorian rent of £10 a year is a minor irritant to the owner of a house now worth perhaps £100,000. In reality the rent owner’s interest in the house is trivial, but in theory he enjoys a number of remedies over the land,88 including the right to re-enter the land and terminate the fee simple estate of the estate owner in the event of nonpayment. In theory there are two fee simple estates in the land, one for the owner while the rent is paid and the other for the rent owner if it falls into arrears for 21 days (or whatever).89 A buyer of the land must obtain a receipt for previous rentcharge payments,90 and protect his position for the future by paying the rentcharge promptly or by redeeming it.

The 1925 legislation created an unforeseen difficulty since, under the original drafting, a fee simple subject to a rentcharge was not absolute (perpetual) and so it ceased to be legal. Many people who thought they owned their homes found themselves restricted to an equitable interest. Popular agitation in the areas of the country most affected led to an amendment in 1926, an amendment that was successful if in elliptical terms:

“A fee simple subject to a legal or equitable right of entry or re-entry is, for the purposes of this Act, a fee simple absolute.”91

When categorising a fee simple subject to a rentcharge, the fee simple now has legal status.92

It is arguable93 that this late amendment may inadvertently have let back all in other conditional fees simple. Consider:

A to B in fee simple on condition that St Paul’s Cathedral does not fall down, in which event A may re-enter the land and terminate B’s interest.

The condition operates through the mechanism of a right to take back the land when the condition is broken, an equitable right of re-entry.94 B’s fee simple appears to fall fairly and squarely within the saving in section 7(1), is deemed to be a fee simple absolute, and so is legal. This remains a hypothesis rather than an established state-

86S Bright [1988] Conv 99; see below [32.53].

87Rentcharges Act 1977 s 2(3) also excepts statutory charges to pay for works and rentcharges created by court order.

88LPA 1925 s 121; hence the rentcharge is an interest in land, rather than a contractual debt.

89The rentcharge is saleable; it qualifies as “land” though it is of course an intangible right in land; hence a rentcharge can issue out of a rentcharge: LPA 1925 s 122.

90A clear receipt for the last instalment is conclusive that there were no arrears.

91LPA 1925 s 7(1); LP (Amendment) A 1926 s 7, sch ; Re Rowhook Mission Hall [1985] Ch 62, 79D, Nourse J.

92If the rentcharge is legal, so is the right of entry; similarly an equitable rentcharge is matched by an equitable right of entry: LPA 1925 s 1(2)(e).

93Megarry & Wade (6th ed), [4.041].

94It is outside LPA 1925 s 1(2)(e).

ment of law but, if true, it was an unintended effect of the 1926 amendment,95 and one greatly destructive of the conceptual purity of the 1925 legislation.

The whole problem would be best solved by substituting a power to sell the land to recover arrears of rentcharge in place of the right of re-entry – to treat a rentcharge like a mortgage – since if surplus proceeds had to be handed back to the landowner, the “unjust” enrichment of a rentcharge owner which occurs after a successful reentry would be removed.

J.UNDOCUMENTED SHIFTING OF LEGAL ESTATES

1.Termination of the freehold

[3.30] A freehold estate can end in two ways. Escheat occurs when the duration for which the land has been granted by the Crown expires and, so96 the land passes up the feudal chain and back to the Crown. Shifting occurs when the legal estate in land97 passes from citizen Smith to citizen Jones, on the occurrence of an event which causes the land to pass without any document to mark the change of ownership. Only a few exceptional cases of legal shifting are left post-1925, that is:

1.Land held subject to a rentcharge after re-entry by the rent-owner on account of non-payment and, possibly, a fee simple held subject to any other condition after re-entry for breach;98

2.Reverter of school sites where the school closed before 1987 and of other determinable fees simple in cases outside the Reverter of Sites Act 1987 where reverted can still occur at law, for example where a public highway is closed.99

There is a similar problem, though less severe, when a single freehold estate continues but it is moved in an undocumented owner from one owner to another – most notably where a freehold is not sent in for first registration within the two months allowed.100

2.Determination of registered estates

[3.31] The cases of shifting just described are a particularly serious menace when title is registered, because the register suggests that Smith is proprietor when actually the land has shifted off the register to Jones. If a registered estate is both determinable and determined this fact must be entered in the register. The title will have to be closed and a new one opened.101

95A trust of land may arise because the land is held in trust for the person entitled after the condition is broken; but a right of re-entry is a burden rather than a trust-based equitable interest: TLATA 1996 sch 3 amends SLA 1925 s 1(1)(ii)(c) (determinable fees) not (b) (conditional).

96See below [3.43].

97There is no problem when equitable entitlement passes; the legal estate in the trustees is unaffected and the only difficulty is for the trustees to ensure that they pay the proceeds to the correct beneficiary.

98See above [3.29].

99See below [14.28].

100See below [9.27].

101LRA 2002 s 64; Law Com 271 (2001), [9.34–9.35]; DLRR 2003 r 79.

K. THE CROWN

1.Feudal grants

[3.32] When Charlemagne dominated most of Western Europe around the year 800, it just so happened that he chose to organise his empire by means of a feudal system. It became common to most of Europe. And, so it happened that when England fell to a single invader in 1066, William introduced his familiar Norman system of social organisation, showing the character that made him a Conqueror by imposing it with a rigour quite unknown elsewhere.102 All land was held of the King. “Allodial” land outside the system was not permitted.103 Feudal landholding was based on a grant of land by the lord to a vassal104 in return for the provision of services. Thus:

LORD

VASSAL

Figure 3-3 Feudal tenure

Feudal society was highly undemocratic, since power was concentrated in the hands of the King and a small group of powerful nobles while the vast majority of the population were condemned to a form of serfdom similar in its essentials to slavery. At some time between 1066 and the twenty-first century, all European countries have neutered or destroyed that system of land holding. In England the final break occurred in 1660, long after it had become obsolescent, when Charles II was restored to the throne. The Channel Island of Sark remains a pure fief ruled over by a feudal seigneur, a system now threatened by a sharp right hook from the human rights lobby.

102Megarry & Wade (6th ed), ch 2; F Barlow, The Feudal Kingdom of England 1042–1216 (Longman, 4th ed, 1988); Marc Bloch, Feudal Society (Routledge, 2nd ed, 1962) vol 1, 145–279; RC Douglas (1939) 9

Economic Hist Rev 128; FM Stenton, The First Century of English Feudalism 1066–1166 (Clarendon, 2nd ed, 1961).

103F Pollock & FW Maitland, History of English Law (Cambridge, 2nd ed, 1898) vol 1, 232; Holdsworth’s History vol 2, 199; SFC Milsom, The Legal Framework of English Feudalism (Cambridge, 1976).

104“Tenant” is reserved in this book for a person holding under a lease from a landlord; “vassal” is used in the feudal context.

Destruction of the feudal system in England has been so complete that in 999,999 cases its position as the theoretical basis of landownership can be ignored in complete safety, but in the millionth case an understanding of the special standing of the Crown makes all the difference.

2.Abolition of tenures and services

[3.33] Until 1290, the process of grant and regrant could be repeated so as to create a pyramid of tenure, with a few large land holdings at the top and many small ones at the bottom. At its apex stood the King, a lord but not a vassal. Up to eight subtenures were reported. Creation of new tenures by subinfeudation was prohibited in the reign of Edward I by Quia Emptores 1290, after which the Crown alone could create new fees simple and a cap was imposed on the total number of tenures. Since then there has been a tendency for all intermediate lordships to become unprovable, so much so that by 1851 the possibility was so remote that it could be wholly ignored.105

Medieval law was marked by diversity of tenure reflecting the diversity of services required of the vassal. At the top of the feudal pyramid, immediately beneath the King, stood the tenants in chief who were likely to provide military services or services personal to the Crown.106 Lower down in the pyramid, at the level of a village, vassals would provide agricultural services to a lord of the manor, who would buy their services with land. The Tenures Abolition Act 1660 expunged knight service,107 leaving a uniform system of socage tenure, the form of tenure that originally involved agricultural services.108

Feudal landholding in England collapsed almost as soon as it had been imposed. The feudal system applied with full rigour only for a century or so after the conquest (to c 1166) and then for another century of so with services transmuted into monetary payments. After that inflation reduced the monetary value of the payment substituted for the services which gradually ceased to be collected, and limitation statutes barred those not exacted over a twenty year period.109 Perquisites called feudal incidents survived longer, for example wardship gave the lord the right to take the profits from land which had passed to an heir who was under age. As overlord, the king benefitted most, but tenures were “much more burdensome, grievous and prejudicial to the kingdom than beneficial to the King”,110 and Charles II’s was restoration in 1660 was conditional on his accepting the termination of all his feudal privileges.111 Land might

105Re Lowe’s WT [1973] 1 WLR 882, 886G, Russell LJ.

106SE Thorne [1958] CLJ 193.

107S 1.

108S 7; frankalmoign (spiritual tenure of saying prayers for the soul of a dead person) was finally abolished in 1925: AEA 1925 sch 2; D Postles [1991] CLJ 330. Query the position of tenancy in ancient demesne (a manor held direct of the crown at the time of Domesday): Iveagh v. Martin [1961] 1 QB 232, 241, Paull J.

109Real Property Limitation Act 1833 s 1 (but not mentioned in modern Limitation Acts); Humphrey v. Gery (1849) 7 CB 567, 137 ER 225 (arrears); De Beauvoir v. Owen (1850) 5 Exch 166, 155 ER 72 (bar of title); Howitt v. Harrington [1893] 2 Ch 497 (copyhold quit rents). Irregular services did not count as “rent” and were not barred: Bevil’s case (1583) 4 Co Rep 6a, 76 ER 860 (homage and fealty); Zouche v. Dalbiac (1875) LR 10 Exch 175 (heriots).

110Tenures Abolition Act 1660, preamble.

111S 1; Att-Gen for Alberta v. Huggard Assets [1953] AC 420, 441–442, PC.

still be subject to honorary services personal to the sovereign (grand serjeanty) such as attendance at the Coronation.112 It was an Act for the landowners rather than for the workers since the King was compensated by a tax on beer.113

Abolition of the feudal system itself is a logical next step, a process which may be assisted by a human rights assault.

3.Abolition of copyhold in 1925

[3.34] Copyhold land calls for special mention since it was the last tenure to lose its distinctive face. At Domesday (1086) the vast mass of the population who were unfree did not even make it into the feudal pyramid. Villeins were owned by the Lord of Manor, were not free to move, held land at his will, owed unspecified agricultural services, and stood outside the protection of the King’s courts. The Black Death (1346) caused a dramatic shift in the balance of power towards the agricultural labour force. A holding “according to the custom of the manor” gradually evolved into villein tenure, itself the progenitor of copyhold tenure. Untouched in 1660,114 copyhold continued except where enfranchisement occurred by agreement115 so late as 1925, and the land continued to be transferred by surrender and admittance enrolled the lord’s court. This was anomalous long before the Birkenhead legislation converted all to freehold socage tenure.116 Most services were abolished immediately117 or in 1950,118 with a few quasi-public rights being preserved indefinitely.119 The link with the lord of the manor was broken,120 so that ex-copyhold land is usually indistinguishable from longer-established freeholds.

4.Dominium and ownership

[3.35] When Justinian divided land that was heritable from goods that were moveable, he imposed a system of Western legal philosophy which insisted that land must carry with it an ultimate right of ownership and control called dominium. A great French lawyer121 said: “C’est la domination complète et exclusive d’une personne sur une chose corporelle”. This emphasised its ultimate character, with nothing behind or above.122 Application of this terminology to English land in say 1250 appeared to give dominium to the Crown, and this is the basis of modern English theory,123 but that tells us little except that English land ownership should not be analysed in Latin, nor

112Tenures Abolition Act 1660 s 7; serjeanty service; CR Jessel [1997] NLJ 34.

113Tenures Abolition Act 1660 ss 15–47.

114Tenures Abolition Act 1660 s 2.

115HJ Randall (1905) 21 LQR 150.

116AW Withers (1946) 62 LQR 167, 167.

117LPA 1922 sch 12 para (1).

118Ss 128–129, 138–40, sch 13 part II; SI 1949/836.

119LPA 1922 s 128(2), sch 12(4)–(6) (mines; fairs; markets; sporting rights; common rights; liability in respect of dykes, ditches, sea walls and hedges).

120Hampshire CC v. Milburn [1991] 1 AC 325, 339G, Lord Templeman.

121PF Girard, Droit Roman, 267.

122WW Buckland, A Textbook of Roman Law (Cambridge, 3rd ed by P Stein, 1963), 188; R Gertler “Roman Ideas of Land Ownership” ch 3 in Bright & Dewar.

123Att-Gen of Ontario v. Mercer (1883) 8 App Cas 767, 772, Selborne LC.

even in French.124 Civilian systems allowed European feudalism to sit side by side with Roman law, but avoiding the absurdity of giving ownership to the lord: Scots law divided the totality of ownership between a dominium directum and a dominium utile – the real ownership of the vassal125 – whereas French law placed dominium in the vassal with the Lord having an incumbrance against the land. Given that civilian systems could not agree it is not a helpful way to address the ownership of English land. Can the Queen drop in, uninvited, for tea? She cannot, though she would be most welcome by invitation. Can she arbitrarily take away land or demand arbitrary payments? No, to each, nor would she try. Estate ownership is absolute ownership. To deny that is to know some, but too little, Roman law;

“Drink deep or taste not the Pierian spring.”126

L. REGISTRATION OF THE CROWN ESTATE

1.The Crown as landowner

[3.36] The previous section has demonstrated the unique position of the Crown, perched on the top of a feudal tree. No estate exists when the Crown has land in its own hands, since it cannot be at once both lord and vassal.127 While the Queen holds land herself, any earlier feudal tenure collapses and the ownership is allodial. This has implications for the acquisition and sale of land as well as its holding. If land is transferred to the Crown, any existing freehold estate must end. This calls for amendment of our fundamental conception of the fee simple absolute in possession as a interest in the land for ever, a miniscule footnote amendment in practice but one that is conceptually important. On a resale the Crown would need to regrant128 the land to a new vassal in socage tenure.129

2.Controls on the sale of Crown land

[3.37] Sale of Crown estate is controlled by a special regime that would not apply to land owned privately. These controls were imposed by Parliament in 1702130 to prevent William of Orange joining in the frenzy of property speculation then prevalent. Land can only be disposed of by lease and only for 31 years. This has created a problem for a Royal Garden Hotel in Kensington built by Richard Seifert in the 1970s so as to encroach onto a tiny plot six by 60 metres belonging to a Royal palace. When the

124JE Hogg (1909) 25 LQR 178; FW Maitland, Constitutional History of England (Cambridge, 1908), 142; JL Barton (1976) 92 LQR 108.

125FL Ganshof, Feudalism (Longmans, 3rd ed, 1964), 129–133; Craig’s Jus Feudale (c 1600), as described in Stair’s Institutions (1681); DM Walker, Scottish Legal System (Edinburgh, W Green, 6th ed, 1992) ch 3.

126A Pope, Essay on Criticism, 216.

127Except in the rare cases where there is a mesne lordship.

128Quia Emptores 1290 does not apply to the Crown.

129Belize Estates & Produce Co v. Quilter [1897] AC 367, 372, Lord Watson in PC; Att-Gen for Alberta

v.Huggard Assets [1953] AC 420, 441, PC; services were not essential: J Hurstfield (1949) 65 LQR 72.

130Crown Lands Act 1702 s 5.