excluded from European contract law and yet be treated as a movable by the local law, say the French Civil Code, resulting in a vacuum in which no law applies to it at all. It might appear more pragmatic to turn the concept of the division around, since land is sited in a particular EU state, and to apply the law of the site to determine what is land.40 It is sensible to require the code to be interpreted autonomously but not so sensible to insist upon its autonomous character at the interface with national systems. Indeed national systems with a category of immovables based on rights in land may not necessarily have a discrete and fully defined category of immovable things as such.

(2) Land as an excluded category

The structure of the common law of property would not be greatly harmed by a Europeanisation of contract/obligation which excluded land. That is not to say that it would be welcomed, merely that it would be technically feasible to implement a contract law excluding land if the government and electorate suddenly became Europhile. A separation between land and not-land is made right at the beginning of property law, a feudal legacy not yet erased, a consequence of recognising ownership of land through the medium of an estate. A lease of a flat or a shop is quite distinct from hiring a car, mortgages are distinct from credit secured on movables, and neighbour obligations comprising easements and covenants exist between landowners but not between neighbouring yachts in a marina. Movables could be separated from land without much statutory surgery.

Despite its name almost all of the Law of Property Act 1925 states the principles of land law and the process of separation of land would require one misplaced rule about the legal

40 P Sparkes European Land Law (Oxford, Hart, 2007) [3.07ff].

assignment of things in action to be moved elsewhere,41 though a few provisions would be better transferred to the legislation governing trusts.42 Acts amending the property regime, and covering registration, land charges and landlord and tenant are already distinct; on the other hand the overarching principles of family, bankruptcy, trusts and deceased estates could continue to overarch, though it might improve the coherence of the law to split the limitation regime. An improvement to the articulation of common law property would result from needing to set out de novo the currently under-developed law of personal property.43

Civilian codes would suffer far more damage from a partition between land and movables. The codes are divided into books, with several devoted to personal obligations and one or more books covering property; this part of the code includes general rules intertwined with rules applying to immovables or rules specific to movables. The exclusion of ownership of movables would leave in place a parallel national code for land in an horrifically messy form. This can readily be seen from a glance at the indexes to book two (property and different types of ownership) of the French Civil Code and book three (law of property) of the German Civil Code (Bürgerliches Gesetzbuch).

Property will be left in a mangled form, with particular titles devoted to immovables remaining in place but with the remaining general sections limited to immovables alone. Obligations would have to be cut in half to exclude contracts to sell movables (now Europeanised) leaving contracts to sell immovables in the truncated civil code. Separate obligations would arise from a nuisance to a greenhouse bolted to a concrete base and nuisance to a greenhouse resting on its base. It would then be logical to recodify what is left, creating a Land Code. This might be national or developed in harmony by a number of stated

41LPA 1925 s 136.

42LPA 1925 parts VII (perpetuities and accumulations), X (wills).

43At least in legislation; for texts see eg MG Bridge Personal Property Law (Oxford,

Clarendon, 3rd edn, 2002).