English property law
Encyclopedia
English property law refers to the law of acquisition, sharing and protection of wealth in England and Wales. Property law can refer to many things, and covers many areas. Property in land is the domain of the law of real property. The law of personal property is particularly important for commercial law and insolvency. Trusts affects everything in English property law. Intellectual property is also an important branch of the law of property. For unregistered land see Unregistered land in English law
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, "are goods, money, and all other movables which may attend the owner's person wherever he thinks proper to go" (Comm. ii. 16). This identification of things personal with movables, though logical in theory, does not, as will be seen, perfectly express the English law, owing to the somewhat anomalous position of chattels real. In England real property is supposed to be superior in dignity to personal property, which was originally of little importance from a legal point of view. This view is the result of feudal ideas, and had no place in the Roman system, in which immovables and movables were dealt with as far as possible in the same manner, and descended according to the same rules. The main differences between real and personal property which still exist in England are these. (I) In real property there can be nothing more than limited ownership; there can be no estate properly so called in personal property, and it may be held in complete ownership. There is nothing corresponding to an estate-tail in personal property; words which in real property would create an estate-tail will give an absolute interest in personalty. A life-interest may, however, be given in personalty, except in articles quae ipso usu consumuntur. Limitations of personal property, equally with those of real property, fall within the rule against perpetuities. (2) Personal property is not subject to various incidents of real property, such as rent, dower or escheat. (3) On the death of the owner intestate real property descends to the heir; personal property is divided according to the Statute of Distributions. (4) Real property as a general rule must be transferred by deed; personal property does not need so solemn a mode of transfer. (5) Contracts relating to real property must be in writing by the Statute of Frauds, 29 Car. II. c. 3, s. 4; contracts relating to personal property need only be in writing when it is expressly so provided by statute, as, for instance, in the cases falling under s. 17 of the Statute of Frauds. (6) A will of lands need not be proved, but a will of personalty or of personal and real property together must be proved in order to give a title to those claiming under it. (7) Devises of real estate fall as a rule within the Mortmain Acts (see Charity And Charities; Corporation); bequests of personal property, other than chattels real, are not within the act. (8) Mortgages of real property need not generally be registered; mortgages of personal property for the most part require registration under the Bills of Sale Acts (see Pledge, and Bill Of Sale).
Personal estate is divided in English law into chattels real and chattels personal; the latter are again divided into choses in possession and choses in action (see Chattel; Chose).
Interest in personal property may be either absolute or qualified. The latter case is illustrated by animals ferae naturae, in which property is only coextensive with detention. Personal property may be acquired by occupancy (including the accessio, commixtio, and confusio of Roman law), by invention, as patent and copyright, or by transfer, either by the act of the law (as in bankruptcy, judgment and intestacy), or by the act of the party (as in gift, contract and will).
There are several cases in which, by statute or otherwise, property is taken out of the class of real or personal to which it seems naturally to belong. By the operation of the equitable doctrine of conversion money directed to be employed in the purchase of land, or land directed to be turned into money, is in general regarded as that species of property into which it is directed to be converted. An example of property prima facie real which is treated as personal is an estate pur autre vie, which, since 14 Geo. II. c. 20, s. 9,1740-1741(now replaced by the Wills Act 1837, s. 6) is distributable as personal property in the absence of a special occupant. Examples of property prima facie personal which is treated as real are fixtures, heirlooms, such as deeds and family portraits, and shares in some of the older companies, as the New River Company, which are real estate by statute. In ordinary cases shares in companies are personal property, unless the shareholders have individually some interest in the land as land.
The terms heritable and movable of Scots law to a great extent correspond with the real and personal of English law. The main points of difference are these. (I) Leases are heritable as to the succession to the lessee, unless the destination expressly exclude heirs, but are movable as to the fisk. (2) Money due on mortgages and securities on land is personalty in England. At common law in Scotland debts secured on heritable property are themselves heritable. But by the Titles to Land Consolidation (Scotland) Act 1868, s. 117, heritable securities are movable as far as regards the succession of the creditor, unless executors are expressly excluded. They still, however, remain heritable quoad fiscum, as between husband and wife, in computing legitim, and as far as regards the succession of the debtor. (3) Up to 1868 the heir of heritage succeeded to certain movable goods called heirship movables, which bore a strong likeness to the heirlooms of English law. This right of the heir was abolished by the act of 1868, s. 160. (4) Annuities, as having tractum futuri temporis, are heritable, and an obligation to pay them falls upon the heir of the deceased (Watson, Law Diet. s.v. " Annuities").
The law in the United States agrees in most respects with that of England. Heirlooms are unknown, one reason being, no doubt, that the importance of title-deeds is much less than it is in England, owing to the operation of the Registration Acts. Long terms in some states have annexed to them the properties of freehold estates. In some states estates pur autre vie descend like real property; in others an estate pur autre vie is deemed a freehold only during the life of the grantee; after his death it becomes a chattel real. In yet other states the heir has a scintilla of interest as special occupant (Kent, Comm. iv. 27). In some states railway rolling-stock is considered as purely personal, in others it has been held to be a fixture, and so to partake of the nature of real property. Shares in some of the early American corporations were, like New River shares in England, made real estate by statute, as in the case of the Cape Sable Company in Maryland (Schouler, Law of Personal Property, i.). In Louisiana animals employed in husbandry are, and slaves were, regarded as immovables. Pews in churches are generally real property, but in some states they are made personal property by statute. The assignment of choses in action is generally permitted, and is in most states regulated by statute. U. W.)
(TOLATA) which came into force in 1997. This had a significant impact, particularly in relation to bankruptcy and the associated importance of the family home - see "Re Shaire
" 2001. There have also been discussions in relation to trusts of land and the Human Rights Act 1998
.
Unregistered land in English law
Unregistered land in English law is land that has not been registered with HM Land Registry. In unregistered land proof of title is based upon historical title deeds....
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History
- Statute of Quia EmptoresQuia EmptoresQuia Emptores of 1290 was a statute passed by Edward I of England that prevented tenants from alienating their lands to others by subinfeudation, instead requiring all tenants wishing to alienate their land to do so by substitution...
1290
- R v Earl of Northumberland (1568), known as the Case of mines
Registration
- Law of Property Act 1925Law of Property Act 1925The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
, Land Registration Act 1925 (see also, Land Registration Act 1862) - Land Registration Act 2002Land Registration Act 2002The Land Registration Act 2002 is an Act of the Parliament of the United Kingdom which repealed and replaced previous legislation governing land registration, in particular the Land Registration Act 1925, which governed an earlier, though similar, system...
and HM Land RegistryHM Land RegistryLand Registry is a non-ministerial government department and executive agency of the Government of the United Kingdom. It was created in 1862 to register the ownership of land and property in England and Wales...
Estates
- Land tenure in EnglandLand tenure in EnglandLand tenure in EnglandEven before the Norman Conquest, there was a strong tradition of landholding in Anglo-Saxon law. When William the Conqueror asserted sovereignty over England in 1066, he confiscated the property of the recalcitrant English landowners...
- Fee simpleFee simpleIn English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
(freehold) - Concurrent estateConcurrent estateA concurrent estate or co-tenancy is a concept in property law which describes the various ways in which property is owned by more than one person at a time. If more than one person own the same property, they are referred to as co-owners, co-tenants or joint tenants...
and Four unitiesFour unitiesThe four unities is a concept in the common law of real property describing conditions that must exist in order for certain kinds of property interests to be created... - Saunders v VautierSaunders v VautierSaunders v Vautier is a leading English trusts law case. It laid down the rule of equity which provides that, if all of the beneficiaries in the trust are of adult age and under no disability, the beneficiaries may require the trustee to transfer the legal estate to them and thereby terminate the...
(1841) 4 Beav 115
- Leasehold
Easements
- Countryside and Rights of Way Act 2000Countryside and Rights of Way Act 2000The Countryside and Rights of Way Act 2000 is a UK Act of Parliament which came into force on 30 November 2000.As of September 2007, not all sections of the Countryside and Rights of Way Act have yet come into force...
Adverse possession
- UsucaptionUsucaptionUsucaption , is a concept found in civil law systems and has its origin in the Roman law of property....
- The Port of London Authority v Ashmore [2010] EWCA Civ 30, regarding adverse possession of a river bed.
Personal property
The division of property into real and personal represents in a great measure the division into immovable and movable incidentally recognized in Roman law and generally adopted since. "Things personal," according to BlackstoneBlackstone
-Businesses:*Blackstone Group, U.S. private equity and asset management firm*Blackstone Career Institute, online training institute*Blackstone & Co, a farm implement and engine manufacturer in Stamford, Lincolnshire until absorbed by Lister in 1937-People:...
, "are goods, money, and all other movables which may attend the owner's person wherever he thinks proper to go" (Comm. ii. 16). This identification of things personal with movables, though logical in theory, does not, as will be seen, perfectly express the English law, owing to the somewhat anomalous position of chattels real. In England real property is supposed to be superior in dignity to personal property, which was originally of little importance from a legal point of view. This view is the result of feudal ideas, and had no place in the Roman system, in which immovables and movables were dealt with as far as possible in the same manner, and descended according to the same rules. The main differences between real and personal property which still exist in England are these. (I) In real property there can be nothing more than limited ownership; there can be no estate properly so called in personal property, and it may be held in complete ownership. There is nothing corresponding to an estate-tail in personal property; words which in real property would create an estate-tail will give an absolute interest in personalty. A life-interest may, however, be given in personalty, except in articles quae ipso usu consumuntur. Limitations of personal property, equally with those of real property, fall within the rule against perpetuities. (2) Personal property is not subject to various incidents of real property, such as rent, dower or escheat. (3) On the death of the owner intestate real property descends to the heir; personal property is divided according to the Statute of Distributions. (4) Real property as a general rule must be transferred by deed; personal property does not need so solemn a mode of transfer. (5) Contracts relating to real property must be in writing by the Statute of Frauds, 29 Car. II. c. 3, s. 4; contracts relating to personal property need only be in writing when it is expressly so provided by statute, as, for instance, in the cases falling under s. 17 of the Statute of Frauds. (6) A will of lands need not be proved, but a will of personalty or of personal and real property together must be proved in order to give a title to those claiming under it. (7) Devises of real estate fall as a rule within the Mortmain Acts (see Charity And Charities; Corporation); bequests of personal property, other than chattels real, are not within the act. (8) Mortgages of real property need not generally be registered; mortgages of personal property for the most part require registration under the Bills of Sale Acts (see Pledge, and Bill Of Sale).
Personal estate is divided in English law into chattels real and chattels personal; the latter are again divided into choses in possession and choses in action (see Chattel; Chose).
Interest in personal property may be either absolute or qualified. The latter case is illustrated by animals ferae naturae, in which property is only coextensive with detention. Personal property may be acquired by occupancy (including the accessio, commixtio, and confusio of Roman law), by invention, as patent and copyright, or by transfer, either by the act of the law (as in bankruptcy, judgment and intestacy), or by the act of the party (as in gift, contract and will).
There are several cases in which, by statute or otherwise, property is taken out of the class of real or personal to which it seems naturally to belong. By the operation of the equitable doctrine of conversion money directed to be employed in the purchase of land, or land directed to be turned into money, is in general regarded as that species of property into which it is directed to be converted. An example of property prima facie real which is treated as personal is an estate pur autre vie, which, since 14 Geo. II. c. 20, s. 9,1740-1741(now replaced by the Wills Act 1837, s. 6) is distributable as personal property in the absence of a special occupant. Examples of property prima facie personal which is treated as real are fixtures, heirlooms, such as deeds and family portraits, and shares in some of the older companies, as the New River Company, which are real estate by statute. In ordinary cases shares in companies are personal property, unless the shareholders have individually some interest in the land as land.
The terms heritable and movable of Scots law to a great extent correspond with the real and personal of English law. The main points of difference are these. (I) Leases are heritable as to the succession to the lessee, unless the destination expressly exclude heirs, but are movable as to the fisk. (2) Money due on mortgages and securities on land is personalty in England. At common law in Scotland debts secured on heritable property are themselves heritable. But by the Titles to Land Consolidation (Scotland) Act 1868, s. 117, heritable securities are movable as far as regards the succession of the creditor, unless executors are expressly excluded. They still, however, remain heritable quoad fiscum, as between husband and wife, in computing legitim, and as far as regards the succession of the debtor. (3) Up to 1868 the heir of heritage succeeded to certain movable goods called heirship movables, which bore a strong likeness to the heirlooms of English law. This right of the heir was abolished by the act of 1868, s. 160. (4) Annuities, as having tractum futuri temporis, are heritable, and an obligation to pay them falls upon the heir of the deceased (Watson, Law Diet. s.v. " Annuities").
The law in the United States agrees in most respects with that of England. Heirlooms are unknown, one reason being, no doubt, that the importance of title-deeds is much less than it is in England, owing to the operation of the Registration Acts. Long terms in some states have annexed to them the properties of freehold estates. In some states estates pur autre vie descend like real property; in others an estate pur autre vie is deemed a freehold only during the life of the grantee; after his death it becomes a chattel real. In yet other states the heir has a scintilla of interest as special occupant (Kent, Comm. iv. 27). In some states railway rolling-stock is considered as purely personal, in others it has been held to be a fixture, and so to partake of the nature of real property. Shares in some of the early American corporations were, like New River shares in England, made real estate by statute, as in the case of the Cape Sable Company in Maryland (Schouler, Law of Personal Property, i.). In Louisiana animals employed in husbandry are, and slaves were, regarded as immovables. Pews in churches are generally real property, but in some states they are made personal property by statute. The assignment of choses in action is generally permitted, and is in most states regulated by statute. U. W.)
- Carrier's CaseCarrier's CaseCarrier's Case 13 Edw. IV, f. 9, pl. 5 was a landmark English court case in property crime law decided in the Star Chamber . The English court adopted the "breaking bulk" doctrine...
(1473) 13 Edw. IV, f. 9, pl. 5 (Star Ch. and Exch. Ch.) - on the crime of larcency.
- Armory v Delamirie (1722) K.B., 1 Strange 505, 93 ER 664
- Waverley Borough Council v FletcherWaverley Borough Council v FletcherWaverley Borough Council v Fletcher [1995] 4 All ER 756 is an English Court of Appeal case.-Facts:The defendant was using a metal detector in a park owned by the claimant council. The defendant found a brooch and reported this. The Coroner decided that it was not treasure trove...
[1995] 4 All ER 756, council had the better right to a brooch found on its land - Parker v British Airways BoardParker v British Airways BoardParker v British Airways Board [1982] 1 QB 1004 is an English property law case decided by the Court of Appeal. The case establishes the rights that a person has to a chattel found on the surface of the land.-Facts:...
[1982] 1 QB 1004, the finder of a bracelet in Heathrow airport could keep it and the Board did not own it
- Dearle v Hall (1828) 3 Russ 1
- R v Knowles, ex parte Somersett (Somersett's Case) (1772) 20 State Tr 1; (1772) Lofft 1 - concerning the illegality of property in people (i.e. slavery) in England.
- Thomas v Times Book CompanyThomas v Times Book CompanyThomas v Times Book Company [1966] 1 WLR 911 is an English law case, in which the legal requirements of making gifts were explored.-Facts:...
[1966] 1 WLR 911, requirement to make a gift is a true intention, so a person told he could keep the manuscript of a play "if he could find it" was a gift
Trusts
The law relating to trusts of land was adjusted by the Trusts of Land and Appointment of Trustees Act 1996Trusts of Land and Appointment of Trustees Act 1996
The Trusts of Land and Appointment of Trustees Act 1996 is an Act of Parliament of the United Kingdom, which altered the law in relation to trusts of land in England, Wales, Scotland and Northern Ireland.-Background:...
(TOLATA) which came into force in 1997. This had a significant impact, particularly in relation to bankruptcy and the associated importance of the family home - see "Re Shaire
Re Shaire
Mortgage Corp v Shaire or Re Shaire [2001] Ch 743 is a significant case in English property law, relating to Trusts of Land, and particularly the Trusts of Land and Appointment of Trustees Act 1996 .-Facts:...
" 2001. There have also been discussions in relation to trusts of land and the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
.
- Stack v Dowden
- Strong v BirdStrong v BirdStrong v Bird [1874] LR 18 Eq 315 is an English property law case. It is an exception to the maxim: Equity will not assist a volunteer.-Facts:...
[1874] LR 18 Eq 315, the testators of a stepmother who did not seek to recover a debt could not recover the money, because her released was voluntary. An exception to the rule that equity will not assist a volunteer.
Intellectual property
See also
- Law of the United KingdomLaw of the United KingdomThe United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law...
- English lawEnglish lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
- Law of Property Act 1925Law of Property Act 1925The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
- English contract lawEnglish contract lawEnglish contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
- UK Property ClassificationUK Property ClassificationProperty ‘uses’ Classes are the legal framework which determines what a particular property may be used for by its lawful occupants. In England and Wales, these are contained within the text of Town and country planning in the United Kingdom Order 1987 Property ‘uses’ Classes are the legal...