Property & Land Law

1) In looking to discuss how far a freeholder can be regarded as the outright and unrestricted owner of the land. Modern land law; this has developed over a period of at least a thousand years. However, whilst it is assumed land is ‘owned’ by those with title to it under one of the two means of land ownership under section 1 of the Law of Property Act (‘LPA’) 1925 – freehold and leasehold – historically, English law was founded upon the premise all land was owned by the monarchy. Therefore, the law looks to distinguish between the ownership of the land and the enjoyment of rights under the doctrine of estates. This is because, as was stated in Walsingham’s Case, “the land is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates which are no more than diversities of time”.
The owner of the ‘freehold’ (‘fee simple absolute in possession’) is the larger of the two estates and tantamount to the actual ownership of the land because it is the most fundamental interest available indefinitely as long as there are people who can take the property under the will of the current owner, or under the rules relating to intestacy before reverting back to the crown, as lesser rights and interests are derived from it. Accordingly, for example, where a lease is granted, the leasehold is simply carved out from the freehold interest and, where there is a trust of land, the equitable interest is enjoyed by the beneficiaries of the trust, but the freehold is generally held by the trustees. Therefore, whilst the freehold interest in any land will be held by someone, the freeholder’s rights will be qualified to the extent third parties enjoy interests that detract from the freeholder’s right to enjoy the freehold themselves under section 1(3) of the LPA 1925. This is because the freeholder would need to know whether they would be bound to recognise any estates and interests someone may have in the property if they can prove they made a contribution. Moreover, although such ownership prima facie carries with it the right of the freeholder to do whatever they want with their land, in reality their freedom is circumscribed by the state’s intervention. This is because ownership of certain valuable materials in the land is vested in the crown, whilst the ability of the freeholder to develop and build on the land, and the use it is put to, are all regulated by planning controls. Therefore, it is clear that whilst the freeholder may ‘own’ the land, their rights are neither absolute nor insurmountable in such cases because of the need to generally co-exist with other rights and interests of surrounding properties.
2-A) In looking to consider the tests that must be fulfilled for the courts to recognise a new claim to an easement (without discussing the easement’s acquisition) it is clear there are a great many examples that have materialised as part of this process that include rights of way; right to light; rights to water; rights to air; rights to storage; rights to support, fencing, use of facilities and parking. Therefore, in looking to be able to recognise a new easement it is important to refer to the four rules of recognition adopted in Re Ellenborough Park for it to be justified (it is easier where it is analogous with another easement already recognised) – (i) they must not exclude use by the servient owner; (ii) it must be a right; (iii) it must not be a ‘new’ negative easement because they have a tendency to restrict the servient tenement owner and the development of their property; (iv) and not involve expenditure by the servient owner in determining a new easements existence.
2-B)
(i) To advise Charlotte on the fact that William has told her she must remove her caravan from the garden of Bluetiles immediately and permanently – even though she says it is her legal right to park it there whenever she likes – it must be recognised that, generally, any interests in land validly created or arising after 31st December 1925, not capable of subsisting as legal estates, are equitable interests. This means that, except where it is otherwise expressly provided for by legislation, interests in land that, under the Statute of Uses 1535 (repealed) or otherwise, could have been created before 1st January 1926 as legal interests are now also equitable interests under Section 4(1) of the Law of Property Act 1925.
Moreover, it must also be recognised that where, under a contract for sale or any disposition of any estate or interest in land (the title to which is not registered under the Land Registration Act (‘LRA’) 2002 or any enactment replaced by it), questions arise regarding whether the purchaser had knowledge at the time of entering into the contract of a registered land charge of any such interests, Charlotte needs to be advised that as to whether William is bound by these interests is determined by reference to his actual knowledge at the time when he purchased Bluetiles. However, Charlotte also needs to be advised that this is tempered by the provisions under which registration is deemed to constitute actual notice under Section 24(1) of the LPA 1925 under the doctrine of notice and the fact E. R. Ives Investment Ltd v. High also suggests some equitable interests may be binding without registration. Therefore, on this basis, it is arguable that Charlotte may not be able to continue using the garden at the rear of Bluetiles because of this. Moreover, there is also a duty to disclose ‘overriding interests’ that adversely affect the land because the concept of ‘unregistered interests’ is inconsistent with any clear system of land registration so they must now be noted on the land register so they cease to be ‘overriding’, so only legal easements and profits can be now be ‘overriding’ (except ‘equitable easements’ that were ‘overriding’ before the 13th October 2003). Therefore, it is arguable that, in view of her claim to a legal right, Charlotte needs to be advised she may have a legal easement to park her caravan in the garden to Bluetiles dependent upon whether this right has been legally recognised.
(ii) With regards to the fact William has taken down the detached garage at Bluetiles, Charlotte needs to advised, although the garage was well within the boundaries of his property, the lower flank wall of Witenites is now exposed to the prevailing weather for the first time and is deteriorating, because she claims the garage (built in 1975) protected her wall from the weather and should remain in place it is necessary to consider the law relating to easements. This is because it could be argued there was a right to support, on analogy, because, without the wall, Witenites has become open to the effects of the weather. But it may not apply here because we do not know how long it will take before Charlotte’s property will fall down or even if it ever will and even if William is not allowed to pull down the wall that does not stop him allowing it to fall down. However, if Charlotte wants to have a ‘new’ easement recognised, on the basis of the aforementioned four rules of recognition adopted in Re Ellenborough Park, she is not entitled to register a ‘new’ negative easement. This is because they have a tendency to restrict the servient tenement owner and the development of their property and that would be the case here because Charlotte does not want the wall pulled down. Therefore, Charlotte may not be able to prevent the wall being pulled down.
(iii) Finally, in conclusion, when it comes to the matter of William’s plan to add a two-storey extension to the north side of Bluetiles, amid Charlotte’s fear that this will considerably reduce the light to her study as well as her living room and kitchen, Charlotte must be advised that this may be hypothetical because it may be dependent upon facts that we are unaware of. This is because Charlotte needs to be advised if she covenanted with the previous owners of Bluetiles that neither they nor their successors in title would build any construction or extend any presently existing construction beyond the rear of the property then their successors in title to William could not generally take the benefit of any agreement unless he was also prepared to accept the related burdens.
Moreover, with regards to the possibility of unregistered ‘equitable easements’, Charlotte needs to be advised that this may be recognised as an easement under the rules of estoppel where she can show there was a representation or assurance from the previous owner she would be entitled to exercise an easement over Bluetiles, and Charlotte acted to her detriment upon it, then an easement may be said to have been created that William must abide by now. This is because she may argue that the light to her skylight is obscured for the right to light as a nuisance by interfering with her ‘comfort’. But it will be dependent upon the specific circumstances of the case because of the fact that the amount of light to be expected will be dependent upon the nature of the property because a mere diminution in the light is not sufficient and just because Charlotte had a ‘special use’ (of her study as a crime fiction writer) unless William was aware of this fact when the easement was acquired. However, there is also a duty to disclose ‘overriding interests’ that adversely affect the land. This is because the concept of ‘unregistered interests’ is inconsistent with any clear system of land registration so they must now be noted on the land register so they cease to be ‘overriding’ and that only legal easements and profits can be now be ‘overriding’ (except ‘equitable easements’ that were ‘overriding’ before the 13th October 2003). Therefore, Charlotte would need to be advised that William would only be able to build the two-storey extension to Bluetiles (subject to planning permission) so long as the ‘equitable easement’ was created after the 13th October 2003 and so this may be dependent upon his long Bluetiles had been empty before William moved in.