
- •Contents
- •Preface
- •Acknowledgments
- •Table of cases
- •Table of statutes
- •Table of statutory instruments
- •Table of treaties
- •Table of EC legislation
- •1 Property law: the issues
- •1.1. Basic definition
- •1.2. Illustrative example
- •1.2.1. John
- •1.2.1.1. The unexcised body cell and the question of ownership
- •1.2.1.2. John’s interest in the excised body cell
- •1.2.1.3. Continuity of interests and John’s interest in the cell line
- •1.2.1.4. Enforceability of John’s interest in the cell line
- •1.2.2. Dr A and Dr B and the acquisition and transmission of property interests
- •1.2.3. The drugs company: constraints on the exercise of property rights
- •Notes and Questions 1.1
- •2 What we mean by ‘property’
- •2.1. Introduction
- •2.1.1. Property as a relationship and as a thing
- •2.1.2. Conceptualising ‘things’
- •2.1.3. Distinguishing property rights from other rights relating to things
- •2.1.4. Rights and other entitlements: Hohfeld’s rights analysis
- •2.1.4.1. Rights and duties, privileges and no-rights
- •2.1.4.2. Privileges and no-rights, and powers and liabilities
- •Abandonment
- •Effect of restrictions on alienation rights
- •2.1.4.3. Powers and liabilities, immunities and disabilities
- •2.1.5. Hohfeldian analysis of dynamic property relationships
- •2.1.5.1. Stage 1: Before the grant of the option
- •2.1.5.2. Stage 2: Grant of the option
- •2.1.5.3. Stage 3: Exercise of the option
- •2.1.6. Property rights, property interests and ownership
- •Notes and Questions 2.1
- •2.2. Private property, communal property, state property and no property
- •2.2.1. Introduction
- •2.2.2.1. No-property: ownerless things
- •2.2.2.2. Open access communal property
- •Distinction between open access and limited access communal property
- •Distinction between open access communal property and no property
- •Distinction between open access communal property and state property
- •Distinction between allocation and provision of resources
- •Regulation of communal property
- •2.2.2.3. Limited access communal property
- •Distinction between communal property and co-ownership
- •Particular use rights rather than general use rights
- •2.2.2.4. State property
- •2.2.2.5. Anticommons property
- •2.3. Economic analysis of property rights
- •2.3.1. What economic analysis seeks to achieve
- •Notes and Questions 2.2
- •2.3.2. Key concepts in the economic analysis of property rights
- •2.3.2.1. Externalities
- •2.3.2.2. Transaction costs
- •Imperfect information
- •Costs of collective action
- •Free-riders and holdouts
- •2.3.2.3. Efficiency
- •Value
- •Pareto efficiency
- •Kaldor-Hicks efficiency
- •2.4. Things as thing and things as wealth
- •2.4.1. Functions of things
- •2.4.2. The idea of a fund
- •2.4.3. Thing versus wealth
- •2.4.4. Related conceptions
- •2.4.4.1. Fungibles and non-fungibles
- •2.4.4.2. ‘Use value’ and ‘exchange value’
- •2.4.4.3. Property and personhood
- •Use value/exchange value
- •A functional distinction
- •Notes and Questions 2.3
- •3 Justifications for property rights
- •3.1. Introduction: general and specific justifications
- •3.2. Economic justification of property rights
- •3.2.1. Property and scarcity
- •Notes and Questions 3.1
- •3.2.2. Viability of single property systems
- •3.2.3. Criteria for measuring the success of a particular form of ownership
- •3.3. John Locke’s justification for private property
- •3.3.1. What Locke was attempting to establish
- •3.3.2. The political context
- •3.3.3. The problem of consent
- •3.3.4. Locke’s justification for original acquisition
- •3.3.5. The nature of Locke’s commons
- •3.3.6. Why mixing labour with a thing should give rise to entitlement
- •3.3.7. The sufficiency proviso
- •3.3.8. The spoilation proviso
- •3.3.9. The theological dimension to Locke’s theory
- •3.3.10. Present relevance of Locke’s theory
- •Notes and Questions 3.2
- •4 Allocating property rights
- •4.1. Introduction
- •4.2. The first occupancy rule
- •4.2.1. Intuitive ordering
- •4.2.2. Preservation of public order
- •4.2.3. Simplicity
- •4.2.4. Signalling
- •4.2.5. The bond between person and possessions
- •4.2.6. The libertarian justification
- •4.2.7. The communitarian objection
- •4.2.8. Economic efficiency
- •Notes and Questions 4.1
- •4.3. New things
- •Notes and Questions 4.2
- •4.4. Capture
- •Notes and Questions 4.3
- •5.2. Iron-holds-the-whale
- •5.3. Split ownership
- •4.5. Colonisation and property rights
- •4.5.1. Introduction
- •4.5.2. The Milirrpum decision and the doctrine of terra nullius
- •4.5.3. Mabo (No. 2)
- •4.5.3.1. Terra nullius
- •4.5.3.2. Property, sovereignty and the doctrine of radical title
- •4.5.3.3. Extinguishment
- •Express extinguishment
- •Implied extinguishment by inconsistent grant
- •Abandonment
- •Surrender but not alienation
- •Notes and Questions 4.4
- •4.5.4. Developments since Mabo (No. 2)
- •5 Personal and proprietary interests
- •5.1. Characteristics of proprietary interests
- •5.1.1. General enforceability
- •5.1.2. Identifiability of subject-matter
- •5.1.2.1. The basic principle
- •5.1.2.2. Fluctuating assets
- •5.1.3. Significance of alienability
- •5.1.3.1. Inalienability of communal property
- •5.1.3.2. Status rights
- •5.1.3.3. Appurtenant rights
- •5.1.4. Requirement for certainty
- •5.1.5. The numerus clausus of property interests
- •5.1.6. Vindication of property rights
- •5.1.7. Termination
- •5.1.7.1. Abandonment
- •5.1.7.2. Disclaimer
- •5.1.7.3. Forfeiture
- •5.1.8. Property rights and insolvency
- •5.2. Special features of communal property rights
- •5.2.1. Present scope of communal property
- •5.2.1.1. Rights of common
- •5.2.1.2. Customary rights
- •Notes and Questions 5.1
- •5.3. Aboriginal land rights
- •5.3.1. Nature of native title
- •5.3.2. Alienability
- •5.3.3. Abandonment
- •5.3.4. Variation
- •5.3.5. Extent of native title
- •5.3.6. Is native title proprietary?
- •5.3.6.1. Blackburn J’s view in Milirrpum
- •5.3.6.2. The view of the High Court in Mabo (No. 2)
- •5.3.6.3. The Canadian view
- •Notes and Questions 5.2
- •6 Ownership
- •6.1. The nature of ownership
- •6.1.1. The basis of ownership
- •6.1.1.1. Ownership and people
- •6.1.1.2. Ownership and things
- •6.1.2. An outline of the difficulties encountered in any consideration of ownership
- •6.1.2.1. The different meanings of ownership
- •6.1.2.2. Disagreements about ownership
- •6.1.2.3. Contradictions within ownership
- •6.1.2.4. The division of ownership
- •Between different types of owner
- •Between owners and non-owners
- •Notes and Questions 6.1
- •Notes and Questions 6.2
- •6.2. The contents of ownership
- •Notes and Questions 6.3
- •Notes and Questions 6.4
- •6.3. The roles played by ownership
- •6.3.1. As a legal term of art
- •6.3.1.1. Ownership’s role in land
- •6.3.1.2. Ownership’s role in chattels
- •6.3.1.3. Ownership’s role in legislation
- •6.3.2. As an amorphous notion
- •6.3.2.1. Ownership as an organising idea
- •6.3.2.2. Ownership as a contested concept
- •6.4. The limitations of ownership
- •6.4.1. Nuisance
- •6.4.1.1. A brief introduction to nuisance
- •Public nuisance
- •Private nuisance
- •6.4.1.2. The requirements of private nuisance
- •6.4.1.3. Private nuisance and private property
- •What is protected?
- •6.4.1.4. The allocation of entitlements
- •The traditional criteria
- •The role of the market
- •The role of public policy
- •6.4.1.5. The protection of entitlements
- •Property rules
- •Liability rules
- •Rules of inalienability
- •Notes and Questions 6.5
- •Notes and Questions 6.6
- •Notes and Questions 6.7
- •Notes and Questions 6.8
- •Notes and Questions 6.9
- •A. Property and liability rules
- •B. Inalienable entitlements
- •Notes and Questions 6.10
- •6.5. Restrictive covenants
- •Notes and Questions 6.11
- •Notes and Questions 6.12
- •7 Possession
- •7.1. The nature of possession
- •7.1.1. Introduction
- •7.1.2. Possession, ownership and proprietary interests
- •7.1.3. What is possession?
- •7.1.3.1. Factual control
- •The relevance of title
- •The nature of the thing possessed
- •The purpose for which the thing is used
- •Control through agents and control of contents
- •7.1.3.2. Intention required
- •Intention to exclude
- •Effect of ignorance
- •Notes and Questions 7.1
- •7.2. Possession of land
- •7.2.1. Leases and licences
- •7.2.1.1. Why the distinction matters
- •7.2.1.2. Distinguishing leases from licences
- •Notes and Questions 7.2
- •7.2.2. Possession and particular use rights
- •7.2.2.1. General and particular use rights
- •7.2.2.2. Compatibility of particular and general use rights
- •7.3. Possession of goods: bailment
- •7.3.1. Nature of bailment
- •7.3.2. Rights, duties and obligations of bailor and bailee
- •7.4. Protection of possession
- •7.4.1. Protection of property rights by protection of possession
- •7.4.2. Tort and the protection of property rights
- •7.4.2.1. The role of tort in the protection of property rights
- •7.4.2.2. Scope of the property torts
- •Conversion
- •What amounts to a conversion of goods?
- •Remedies
- •Trespass
- •What amounts to trespass
- •Remedies
- •7.4.3. Self-help remedies
- •7.4.3.1. Survival of self-help remedies
- •7.4.3.2. Restrictions and deterrents
- •7.4.4. Unlawful eviction and harassment
- •7.4.5. Trespassing and the criminal law
- •Notes and Questions 7.3
- •8 Fragmentation of ownership
- •8.1. Introduction
- •8.2. Present and future interests
- •8.2.1. Interests in possession, in reversion and in remainder
- •8.2.2. Absolute entitlements, contingent entitlements and mere expectancies
- •8.2.2.1. Absolute entitlements
- •8.2.2.2. Contingent interests and expectancies
- •8.2.2.3. Alternative contingencies
- •8.2.3. When interests vest
- •8.2.4. Alienation, management and control
- •8.2.5. Interests of contingent duration
- •8.2.5.1. Determinable interests
- •8.2.5.2. Interests subject to a condition subsequent
- •8.2.5.3. Distinguishing determinable and forfeitable interests
- •8.2.6. Requirement of certainty
- •8.2.7. Successive interests in land and the doctrine of tenures and estates
- •8.2.7.1. Tenures and estates
- •8.2.7.2. Estates in particular use rights
- •8.2.7.3. Leases
- •8.2.8. Restrictions on the power to create future interests
- •8.3. Legal and equitable interests
- •8.3.1. Origin of the legal/equitable distinction
- •8.3.1.1. Failed formality interests
- •8.3.1.2. Novel interests
- •8.3.2. Legal and equitable interests now
- •8.3.2.1. Interests in land
- •8.3.2.2. Interests in goods
- •8.3.3. The significance of the legal/equitable distinction
- •8.3.4. Three common fallacies
- •8.3.4.1. Equitable interests and beneficial interests
- •8.3.4.2. Over-identification of equitable interests with trusts
- •8.3.4.3. Absolute ownership does not include equitable beneficial ownership
- •Notes and Questions 8.1
- •8.4. Fragmentation of management, control and benefit
- •8.4.1. Corporate property holding
- •8.4.2. Managerial property holding
- •8.4.2.1. Trust
- •The trustee
- •The settlor
- •The beneficiaries
- •8.4.2.2. Administration of property on death
- •8.4.2.3. Bankruptcy and liquidation
- •Notes and Questions 8.2
- •8.5. Group ownership
- •8.6. General and particular use rights
- •Notes and Questions 8.3
- •9 Recognition of new property interests
- •9.1. Why are certain interests regarded as property?
- •9.1.1. The function of property
- •9.1.1.1. As a means of allocating scarce resources
- •9.1.1.2. As an incentive to promote their management
- •9.1.1.3. As a moral, philosophical or political statement
- •9.1.2. The danger of property
- •9.1.3. The requirements of property
- •9.2. The dynamic nature of property
- •9.2.1. The recognition and limits of the covenant as a proprietary interest
- •Notes and Questions 9.1
- •9.2.2. The recognition of a proprietary right to occupy the matrimonial home
- •Notes and Questions 9.2
- •9.3. The general reluctance to recognise new property rights
- •9.3.1. The facts of Victoria Park Racing v. Taylor
- •9.3.2. The views of the majority
- •9.3.3. The views of the minority
- •9.3.4. The significance of the case
- •Notes and Questions 9.3
- •9.4. A comparative confirmation and an economic critique
- •Notes and Questions 9.4
- •9.5. The future of property
- •9.5.1. The new property thesis
- •Notes and Questions 9.5
- •Notes and Questions 9.6
- •10 Title
- •10.1. What we mean by ‘title’
- •10.2. Acquiring title: derivative and original acquisition of title
- •10.2.1. Derivative acquisition: disposition or grant
- •10.2.2. Original acquisition
- •10.3. Relativity of title
- •10.4. Proving title
- •10.4.1. Role of registration
- •10.4.2. Possession as a root of title
- •10.4.3. Provenance
- •10.4.4. Extinguishing title by limitation of action rules
- •10.4.5. Relativity of title and the ius tertii
- •10.5. The nemo dat rule
- •10.5.1. Scope of the nemo dat rule
- •10.5.2. General principles applicable to all property
- •10.5.2.1. Registration and the nemo dat rule
- •10.5.2.2. Dispositions to volunteers
- •10.5.2.3. Powers of sale
- •10.5.3. The application of the nemo dat rule to goods
- •10.5.4. The application of the nemo dat rule to money
- •10.5.5. The application of the nemo dat rule to land
- •10.5.5.1. The general principle
- •10.5.5.2. After-acquired property
- •10.5.5.3. Interests by estoppel
- •10.6. Legal and equitable title
- •11 Acquiring title by possession
- •11.1. Introduction
- •11.2. The operation of adverse possession rules
- •11.2.1. Unregistered land
- •11.2.2. Registered land
- •11.2.3. What counts as ‘adverse’ possession
- •11.2.4. Effect on third party interests
- •11.3. Why established possession should defeat the paper owner
- •11.4. Adverse possession and registration
- •11.5. Good faith and the adverse possessor
- •1. Tension between principle and proof
- •Notes and Questions 11.1
- •A. Lockean entitlement
- •B. Utilitarianism
- •C. Property and personhood
- •B. Property theory and adverse possession
- •Notes and Questions 11.2
- •Notes and Questions 11.3
- •Stale claims in registered land
- •Stale claims under the 2002 Act
- •Distinguishing the ‘good’ squatter from the ‘bad’ squatter
- •Problems of proof
- •Effect of the 2002 Act changes on the incidence of adverse possession
- •The incompatibility argument
- •Notes and Questions 11.4
- •11.6. Goods
- •11.6.1. Taking and theft
- •11.6.2. Protection of title by tort
- •11.6.3. The Limitation Act 1980 and title to goods
- •11.6.4. Finders
- •Notes and Questions 11.5
- •12 Transfer and grant
- •12.1. Derivative acquisition
- •12.2. Formalities
- •12.2.1. Nature and content of formalities rules
- •12.2.2. Registration and electronic transactions
- •12.2.3. Validity and enforceability against third parties
- •12.2.4. Effect of compliance on passing of title
- •12.2.5. Transactions excepted from formalities rules
- •12.2.5.1. Equitable modification of legal rules
- •12.2.5.2. Implied rights
- •12.2.5.3. Rights acquired by possession or prescription
- •12.2.6. Deeds and prescribed forms
- •12.2.7. Why have formalities rules
- •12.2.7.1. The evidentiary function
- •12.2.7.2. The cautionary function
- •12.2.7.3. The channelling function
- •12.2.7.4. Other functions
- •Clarifying terms
- •Publicity
- •State functions
- •12.2.8. Disadvantages
- •12.2.8.1. Hard cases
- •12.2.8.2. Costs
- •Notes and Questions 12.1
- •Notes and Questions 12.2
- •12.3. Contractual rights to property interests
- •12.3.1. Estate contracts and the rule in Walsh v. Lonsdale
- •12.3.2. Application to property other than land
- •12.3.3. The failed formalities rule
- •12.3.3.1. The general rule
- •12.3.3.2. The failed formalities rule as it applies to land
- •12.3.3.3. Failed formalities rule as it applies to other property
- •Notes and Questions 12.3
- •Notes and Questions 12.4
- •12.3.4. Options to purchase, rights of pre-emption and rights of first refusal
- •Notes and Questions 12.5
- •Notes and Questions 12.6
- •12.4. Unascertained property
- •12.4.1. The problem of identification
- •12.4.2. Unascertained goods
- •12.4.3. Other unascertained property
- •Notes and Questions 12.7
- •13 Acquiring interests by other methods
- •13.1. Introduction
- •13.2. The difference between adverse possession and prescription
- •13.3. Why long use should give rise to entitlement
- •13.4. Rationale
- •13.4.1. Ascendancy of the presumed grant rationale
- •13.4.2. Effect of the ‘revolting fiction’
- •13.5. When long use gives rise to a prescriptive right
- •13.5.1. The problem of negative uses
- •13.5.2. Rights that can be granted but not acquired by prescription
- •13.6. User as of right and the problem of acquiescence
- •13.7. The future of prescription
- •Recommendation in favour of abolition
- •Minority view in favour of retention
- •Notes and Questions 13.1
- •14 Enforceability and priority of interests
- •14.1. Rationale of enforceability and priority rules
- •14.2. Enforceability and priority rules
- •14.2.1. The basic rules
- •14.2.2. Impact of registration
- •Notes and Questions 14.1
- •14.3. The doctrine of notice
- •14.3.1. Notice
- •14.3.2. Good faith
- •14.3.3. Effectiveness of the doctrine of notice as an enforceability rule
- •Notes and Questions 14.2
- •14.4. Overreaching
- •14.4.1. Nature and scope of overreaching
- •14.4.2. Operation of overreaching
- •14.4.3. Overreaching the interests of occupying beneficiaries
- •14.4.4. Transactions capable of overreaching beneficiaries’ interests
- •14.4.5. The two-trustees rule
- •Introductory
- •Overreaching
- •Safeguard for beneficiaries
- •Change of circumstances
- •Protecting occupation of property
- •Principal recommendation
- •Notes and Questions 14.3
- •15 Registration
- •15.1. What are registration systems for?
- •15.2. Characteristics of the English land registration system
- •15.2.1. Privacy
- •15.2.2. Comprehensiveness
- •15.2.3. Boundaries
- •15.2.4. Restricted class of registrable interests
- •15.2.4.1. Distinguishing ‘substantive’ registration and ‘protection’ on the register
- •15.2.4.2. Registration
- •15.2.4.3. ‘Protection’ by notice or restriction
- •15.2.4.4. The overriding interest class
- •15.2.5. The mirror, curtain and guarantee principles
- •THE ‘MIRROR PRINCIPLE’
- •THE ‘CURTAIN PRINCIPLE’
- •15.2.6. Consequences of non-registration
- •Notes and Questions 15.1
- •Compulsory use of electronic conveyancing
- •Do-it-yourself conveyancing
- •The objective of the power
- •The application of the power
- •Notes and Questions 15.2
- •15.3. Enforceability and priority of interests under the Land Registration Act 2002
- •15.3.1. Registrable interests
- •15.3.2. All other interests
- •15.3.2.1. Enforceability
- •15.3.2.2. Priority
- •15.4. Overriding interests
- •15.4.1. Justifications for overriding interests
- •15.4.2. Principles to be applied
- •15.4.3. Overriding interests under the 2002 Act
- •15.4.4. Easements and profits
- •15.4.5. Interests of persons in actual occupation: the 1925 Act
- •15.4.5.1. What rights are covered?
- •5.4.5.2. Actual occupation
- •Physical presence
- •Personal occupation
- •Non-residential premises
- •15.4.6. Interests of persons in actual occupation: the 2002 Act
- •15.4.6.1. Causal link between interest and occupation
- •15.4.6.2. Meaning of ‘actual occupation’
- •15.4.6.3. The ‘notice’ element
- •15.4.6.4. Can minors be in actual occupation?
- •15.4.6.5. Occupation of part
- •15.4.7. Complexity
- •Notes and Questions 15.3
- •15.5. Indemnity
- •15.5.1. Function of indemnity
- •15.5.2. Shortfall in the provision of indemnity
- •15.5.3. Cost
- •17 Leases and bailment
- •17.1. Introduction
- •17.2. Leases and bailments compared
- •17.2.1. Consensuality
- •17.2.2. Contract
- •17.2.3. Enforcement
- •17.2.4. Duration and purpose
- •17.2.5. Beneficial use
- •17.2.6. Proprietary status
- •17.2.7. Inherent obligations of the possessor
- •17.3. Leases
- •17.3.1. Nature of the lease
- •17.3.1.1. Duration: the four basic categories
- •The legal position
- •Length of fixed-term leases in practice
- •Commonhold as an alternative to the long residential lease
- •Commercial premises
- •Assignment and premature termination of fixed-term lease
- •17.3.1.3. Periodic tenancies
- •Nature
- •Contractual fetters on notice to quit
- •17.3.1.4. Tenancy at will
- •Tenancy at sufferance
- •Notes and Questions 17.1
- •17.3.1.5. Certainty of duration
- •Notes and Questions 17.2
- •Passage 2
- •Passage 3
- •Passage 4
- •Notes and Questions 17.3
- •17.3.1.7. The tolerated trespasser status
- •Notes and Questions 17.4
- •Notes and Questions 17.5
- •17.3.2. Alienability
- •17.3.2.1. Inherent alienability
- •Alienability of tenant’s interest
- •Subleases and other derivative interests granted by the tenant
- •Effect of termination of lease on derivative interests
- •Alienability of landlord’s interest
- •Concurrent leases and other derivative interests granted by the landlord
- •17.3.2.2. Restrictions on alienability
- •17.3.2.3. Statutory control of contractual restrictions
- •Notes and Questions 17.6
- •17.3.3. Effect of alienation on enforceability
- •17.3.3.1. Introduction: the basic principle
- •Automatic transmission of benefit and burden of proprietary terms: the privity of estate principle
- •Post-assignment liability: the privity of contract principle
- •17.3.3.3. Derivative interest holders
- •17.4. Bailment
- •17.4.1. Essential features of bailment
- •17.4.2. Categories of bailment
- •17.4.3. Characteristics of bailment
- •17.4.4. Liabilities of the bailee
- •Notes and Questions 17.7
- •17.4.5. Is bailment proprietary?
- •17.4.5.1. Possession and exclusivity
- •17.4.5.2. Alienability
- •17.4.5.3. Enforceability against third parties
- •17.4.5.4. Other proprietary indicia
- •18 Security interests
- •18.1. The nature and function of security
- •18.1.1. Nature of security
- •18.1.1.1. Terminology problems
- •18.1.1.2. Legal and equitable rights to redeem
- •18.1.1.3. Creation, attachment and perfection of security
- •18.1.2. Function
- •18.1.2.1. Right of first recourse
- •18.1.2.2. Attachment to the asset
- •18.1.2.4. The hostage function
- •18.1.2.5. Signalling, monitoring and control
- •18.1.3. Efficiency
- •18.1.4. Use of security
- •18.2. Forms of security
- •18.2.1. Property transfer securities: the mortgage
- •18.2.2. Possessory securities: pledge or pawn
- •18.2.3. Hypothecations: the charge
- •18.2.4. Liens
- •18.2.5. Property retention securities
- •18.2.6. Charge by way of legal mortgage
- •Notes and Questions 18.1
- •18.3. Control over the terms of the relationship
- •18.3.1. Equitable supervisory jurisdiction
- •18.3.2. The Kreglinger principles
- •18.3.3. Statutory intervention
- •Notes and Questions 18.2
- •18.4. Enforcement of security
- •18.4.1. Remedies
- •18.4.2. Possession
- •18.4.3. Sale
- •18.4.3.1. When the power arises
- •18.4.3.2. When the power becomes exercisable
- •18.4.4. Duties on enforcement
- •General principles
- •The handling of arrears: initial action taken by lenders
- •Alleviating arrears problems
- •The levying of charges on accounts in arrear
- •Methods of obtaining possession
- •Proceeds of sale
- •Indemnity insurance
- •Loss recovery procedures
- •Notes and Questions 18.3
- •16 Co-ownership
- •16.1. Introduction
- •16.2.1. Basic concepts
- •OWNERSHIP IN COMMON
- •JOINT OWNERSHIP
- •CONCURRENT INTERESTS IN FINANCIAL ASSETS
- •CONCURRENT INTERESTS IN LAND
- •Notes and Questions 16.1
- •Unity of possession
- •Unity of interest
- •Unity of title
- •Unity of time
- •16.2.2. A comparison of joint tenancies and tenancies in common
- •16.2.2.1. Four unities versus one
- •Notes and Questions 16.2
- •16.2.2.2. The right of survivorship (and how to avoid it)
- •Severance at common law
- •16.2.2.3. Acting upon one’s share
- •16.2.2.4. Mutual agreement
- •16.2.2.5. Mutual conduct
- •16.2.2.6. Statutory severance
- •Notes and Questions 16.3
- •16.2.3. Use of co-owned property
- •16.2.3.1. Land
- •12 THE RIGHT TO OCCUPY
- •13 EXCLUSION AND RESTRICTION OF RIGHT TO OCCUPY
- •Notes and Questions 16.4
- •16.2.3.2. Chattels
- •Notes and Questions 16.5
- •16.2.4. Sale and other dispositions of co-owned property
- •16.2.4.1. Land
- •Notes and Questions 16.6
- •16.2.4.2. Chattels
- •16.3. Other forms of co-ownership
- •16.3.1. Commonhold
- •16.3.2. Unincorporated associations
- •Notes and Questions 16.7
- •16.3.3. Extending the limits of co-ownership: public trusts
- •Bibliography
- •Index

Leases and bailment 635
Stirling v. Leadenhall) rather than adversely, but that none of the terms of the former tenancy apply (Pemberton). This means the landlord can take no action against the ‘tenant’ for any breach of covenant, other than a failure to pay the sums agreed under the agreement, nor can the ‘tenant’ rely on any of the express or implied obligations of the landlord under the former tenancy, for example as to repair. Whatever rights and obligations they have towards each other therefore appear to arise from the fact that the ‘tenant’ has possession (and therefore, as it was held in Pemberton, can bring actions in nuisance against the ‘landlord’) and the fact that the premises remain the ‘tenant’s’ home for the purposes of the Human Rights Act (see further Pemberton). The situation is further complicated, and the artificiality heightened, by the fact that, in the Burrows-type case, the ‘tenant’ (but not, it would seem, the ‘landlord’) can at any time apply to have the possession order discharged, and it seems likely that, if it does so at a time when the terms of the agreement have been complied with, the court will agree. Once this is done, the old secure tenancy will revive with retrospective effect, allowing the parties to take advantage of the former tenancy terms in respect of events that took place during the limbo period (see Rogers). ‘Trespass’ is not, therefore, a wholly satisfactory epithet.
Notes and Questions 17.4
Read Burrows v. Brent London Borough Council [1996] 1 WLR 1448; [1996] 4 All ER 577, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:
1Why, according to Lord Browne-Wilkinson, is a tenant holding over after the end of a secure tenancy in a different position from a tenant holding over after the end of any other type of tenancy?
2Lord Browne-Wilkinson describes the secure tenancy as sui generis, and says decisions on other holding-over situations are not helpful here, and Lord Jauncey refers to the occupation as ‘deriving’ from the provisions of the
1985 Act, and refers to the Act as giving the court the power ‘to create a state of statutory limbo’. Does this mean that the status of tolerated trespasser cannot arise in any circumstances other than following on after a secure tenancy?
3Explain how the facts of this case differ from those in Greenwich London Borough Council v. Regan (1996) 28 HLR 469; (1996) 72 P&CR 507. What did the Court of Appeal in Regan decide was the status of the tenant in that particular case?
4 Explain how, according to Lord Browne-Wilkinson, a secure tenancy terminated by an immediate unconditional possession order can be revived after the date specified in the order as the date on which possession must be given up.

636 Property Law
5Lord Jauncey took the view that the wording of section 85 of the Housing Act 1985 itself supports the contention that a tenant against whom a possession order has been made might remain in possession in a capacity other than that of tenant: explain his argument, and consider its validity.
6What were the absurdities that persuaded the Court of Appeal that the effect of the agreement was to grant Ms Burrows a new tenancy? Explain how they are avoided by the analysis adopted by the House of Lords, and examine the reasons given by Lord Browne-Wilkinson for his conclusion that Parliament could not have intended such an agreement to give rise to a new tenancy.
7It was not argued in this case that the effect of the agreement was to create a licence, or a tenancy at will, or a tenancy at sufferance. Why not? If it had been argued, what arguments could have been put by Lord Browne-Wilkinson for saying that it did not fall within each of these categories?
8Explain what, as a result of this decision, the difference is between a licence, a tenancy at will, a tenancy at sufferance, and the status of tolerated trespasser.
9If a tolerated trespasser remains in possession as such for ten years, will he be entitled to apply to the Land Registry to be registered as proprietor as an adverse possessor? See section 11.2.2 above.
10Lord Browne-Wilkinson said: ‘the parties plainly did not intend to create a new tenancy or licence, but only to defer the execution of the order so long as Miss Burrows complied with the agreed conditions.’ Is this more correctly categorisable as a fixed-term tenancy of uncertain duration?
11Does a ‘tolerated trespasser’ have an interest in land? If so, what is it?
17.3.1.8.Non-proprietary leases?
At this point we need to return to a question posed in Chapter 10. Suppose I am in practical control of land but have no property interest in it, and I then purport to grant a lease of it to you. If you move in, take exclusive physical control of the land and pay me rent, do you acquire a lease of the land? In Chapter 10, we concluded that you would be precluded from having a tenancy because of the nemo dat rule, but that you would have a tenancy by estoppel. As we noted there, a tenancy by estoppel has two essential features. The first is that, even though there is no tenancy as far as the rest of the world is concerned, the purported grant is effective as between you and me, in the sense that I will be estopped from denying the existence of, or acting in any way inconsistent with the existence of, the tenancy. The second essential feature is that the estoppel can be fed, so that, if I subsequently acquire a sufficient interest in the land, your tenancy by estoppel will automatically be transformed into a real tenancy, enforceable against the whole world.

Leases and bailment 637
Now we must consider a variation on this situation. Suppose that the facts are identical, except that I am completely honest with you throughout. I tell you that I have no interest in the land which would enable me to grant you a lease, and when I hand over exclusive physical control to you I tell you that what I am granting to you is necessarily a licence, not a lease. What is your position then? At first sight, it might seem quite straightforward. Because of the nemo dat rule, you cannot have a lease. And, because both of us know that I am unable to grant you a lease, and I never pretended that that was what I was doing, there does not seem room for me to be estopped from denying it.
In Bruton v. London & Quadrant Housing Trust [1998] QB 834, CA, the Court of Appeal held that such a situation could not give rise to a tenancy (nor, for reasons which will be considered below, a tenancy by estoppel). However, the House of Lords ([2001] 1 AC 406) disagreed, and concluded unanimously that, although there was no tenancy by estoppel, there was a lease – but one which was not enforceable against third parties.
In order to appreciate the arguments that persuaded the House of Lords, it is necessary to look more closely at the factual context. Local authority landowners do not have the same powers to dispose of their land as absolute owners have. They are given specific statutory powers of disposition, and, if they purport to make a disposition that they have no power to make, the disposition will be void. Local authorities who own residential accommodation do have statutory powers to let it to residential occupiers. As a result of the decision in Street v. Mountford [1985] AC 809, if they do grant possession to residential occupiers, the grant will almost certainly be construed as a tenancy, even if it is called something else. Consequently, the occupier will be entitled to require the local authority to keep the property in repair under section 11 of the Landlord and Tenant Act 1985, and will also be a secure tenant and as such entitled to security of tenure under the Housing Act 1985 as amended. There are circumstances in which local authorities wish to avoid these consequences, and the Bruton case concerned a stratagem designed to enable them to do so.
The stratagem requires two steps to be taken. First, the local authority transfers occupation and control of the residential property to a body to whom it has no statutory power to dispose, in this case a housing trust. Whatever the terms of the transfer, so the argument goes, it cannot confer any proprietary interest on the housing trust because, if it did, that would be an ultra vires disposition and therefore void. The transfer will, however, put the housing trust in unchallengeable factual control of the property, and therefore put it in a position to take the second step, which is for it to grant exclusive occupation of the property to a residential occupier. The housing trust is then able to argue that, whatever the terms of the agreement it makes with the residential occupier, it cannot amount to a tenancy because of the nemo dat rule.
The policy issue confronting the House of Lords was therefore whether a local authority and a housing trust, each of which had the power and the capacity to