LAND LAW This page intentionally left blank LA ND LAW Text, Cases, and Materials SECOND EDITION Ben McFarlane, Nicholas Hopkins, and Sarah Nield 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © B McFarlane, NP Hopkins and SA Nield 2012 Th e moral rights of the authors have been asserted First Edition copyright 2009 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. 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PREFACE We wrote the preface to the fi rst edition of this book in March 2009. Th e three years since then have brought a volume of new cases, legislation, reform proposals and academic com- mentary that thoroughly refutes any lingering idea that land law is a musty or static subject. Indeed, on one day alone (9 November 2011), the Supreme Court delivered judgments in two potentially seminal land law cases: Jones v Kernott and Berrisford (FC) v Mexfi eld Housing Co-operative Limited. Th ese and other developments have naturally left their mark on this second edition. Chapters 16 and 23 have been extensively revised to incorporate the judgments in Jones and Berrisford; Chapter 10 has been re-written to take account of a House of Lords deci- sion of 2009 (Th orner v Major); and a Supreme Court case of 2010 (Star Energy Weald Basin Limited v Bocardo SA) features prominently in a re-worked Chapter 2. To give just one fur- ther example, the pivotal decision of a nine-member Supreme Court in Manchester City Council v Pinnock (2010) has led to a thorough revision of our human rights chapter. It has also caused us to re-structure our introductory chapters so that our second edition, like the Supreme Court’s decision itself, affi rms the importance of human rights in land law. We have also incorporated the impact of new legislation, such as the Perpetuities and Accumulations Act 2009, the Equality Act 2010, and the Localism Act 2011. Despite all this activity, the scent of further reform is in the air, and Chapters 25 and 26 have been updated to consider the Law Commission’s 2011 report on easements, covenants and profi ts à prendre. As our fi rst edition made clear, we are also keen to give readers access to the best academic writing on land law, and this edition includes extracts from and references to new articles and books on a wide range of topics, from land registration to constructive trusts. We have taken the opportunity of a new edition not only to update the content of the chapters, but also to revise their structure. Th e fi rst chapter, and the whole of Part A, has been streamlined, to give a more focused introduction to land law. Readers of the fi rst edi- tion found its three-step approach to be very helpful in understanding the operation of interests in land, and therefore Parts B, C and D have been modifi ed so as to correspond to the content, acquisition and defences questions. We have also altered the contents and positioning of the licences chapter, so as to make the most of the instructive comparison between licences and leases. Despite the large number of developments since 2009, we have, by careful pruning, ensured that the overall length of the book has barely increased. We wrote in the preface to the fi rst edition that the Text, Cases and Materials format is ideally suited to land law. Th e key advantage of such a book is that it can both show and tell. In this edition, as well as providing direct access to the most important and useful cases and materials, we have again made sure to guide readers, by devoting more than half of the book to our author commentary. While there are some areas in which we can all claim a level of expertise, our individual interests meant that the division of labour was perhaps more readily determined than might have been the case. Ben is responsible for Chapters 1–2, 4–6, 10, 12, 15 and 21–23; Nick for Chapters 7–9, 11, 13–14 and 16–19; Sarah for Chapters 3 and 24–30; and Nick and Sarah jointly wrote Chapter 20. Each of us has read and commented on chapters written by the others. Our thanks are wholeheartedly extended to colleagues, friends and to staff at OUP who have helped us in writing each of the fi rst and second editions. Professor John Mee and a vi | Preface number of anonymous referees took on the unenviable task of reading and commenting on the fi rst edition. Likewise, a number of people commented on individual chapters in that fi rst edition: we are particularly indebted to Amy Goymour, Professor David Clarke and Peter Smith. Th eir generosity in giving of their time and their own insights into the subject is gratefully acknowledged and has undoubtedly improved the fi nished text. Rupert Seal and Ruth Hudson played a signifi cant role in the development of the Online Resource Centre. Ben is grateful to Stephen Du and Christopher Knowles for their comments on the fi rst edition and research assistance on the second edition. Th e enthusiasm and commitment of OUP have helped make the process of writing an enjoyable one. Particular thanks are due to Kate Whetter, our commissioning editor for the second edition, to copy-editor Francesca White, and to Stella White for her management of the marketing. Ben McFarlane Nicholas Hopkins Sarah Nield March 2012 ACKNOWLEDGEMENTS Grateful acknowledgement is made to all the authors and publishers of copyright material which appears in this book, and in particular to the following for permission to reprint material from the sources indicated: Crown copyright material is reproduced under Class Licence Number C2006010631 with the permission of the Controller of OPSI and the Queen’s Printer for Scotland. Parliamentary copyright material is reproduced with the permission of the Controller of Her Majesty’s Stationery Offi ce on behalf of Parliament. Cambridge Law Review Association and the authors:for extracts from Cambridge Law Journal: S Bright: ‘Avoiding tenancy Legislation: Sham and Contracting Out Revisited’, CLJ 146 (2002); S Bright and B McFarlane: ‘Proprietary Estoppel and Property Rights’ CLJ 449 (2005);J Hill: ‘Th e Termination of Bare Licences’ CLJ 87 (2001); C Harpum: ‘Overreaching, Trustees’ Powers and the Reform of the 1925 Legislation’ 49 CLJ 277 (1990); D Neuberger: ‘Th e Stuffi ng of Minerva’s Owl? Taxonomy and Taxidermy in Equity’ 68 CLJ 537 (2009). Cambridge University Press and the authors:for extract from A Clarke and P Kohler: Property Law: Commentary and Materials (CUP, 2005). HarperCollins: for extract from J Hackney: Understanding Equity and Trusts (Fontana Press, 1987). Hart:for extracts from S Bright: Landlord and Tenant Law in Context (Hart, 2007); E Cooke: Th e New law of Land Registration (Hart, 2003); L Fox: Conceptualising Home: Th eories, Laws and Policies (Hart, 2007); S Gardner: An Introduction to Land Law (Hart 2007); McFarlane: Th e Structure of Property Law (Hart, 2008); and from the Modern Studies of Property Law: M Davey: ‘Th e Regulation of Long Residential Leases’ (Volume 3, 2005); M Dixon: ‘Proprietary Estoppel and Formalities in Land Law and the Land Registration Act 2002: A Th eory of Unconscionability’ (Volume 2, 2002); J Mee: ‘Th e Role of Expectation in the Determination of Proprietary Estoppel Remedies’ (Volume 5, 2009); S A Nield: ‘Charges, Possession and Human Rights: A Reappraisal of Section 87(1) Law of Property Act 1925’ (Volume 3, 2005); S A Nield: ‘Clash of the Titans: Article 8, Occupiers and Respect for their Home’ (Volume 6, 2011); and P O’Connor: ‘Registration of Title in England and Australia’ (Volume 2, 2003). Incorporated Council of Law Reporting: for extracts from the Law Reports: Appeal Cases (AC), Chancery Division (Ch), Family Division (Fam), King’s Bench Division (KB), Queen’s Bench Division (QB), and Weekly Law Reports (WLR). Jordan Publishing Ltd: for extract from the Family Law Reports. Reed Elsevier (UK) trading as LexisNexis: for extracts for All England Law Reports (All ER); B McFarlane and E Simpson: Tackling Avoidance’ in Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (Butterworths, 2002); N Hopkins: ‘Proprietary Estoppel: A Functional Analysis’ 4 Journal of Equity 1 (2010); and J E Penner: ‘Duty and Liability in Respect of Funds’ in J Lowry and L Mistelis (eds.): Commercial Law: Perspectives and Practice (Butterworths, 2006). viii | AcknowledgEments Oxford University Press: for extracts from P Birks: ‘Before We Begin: Five Keys to Land Law’ and D Clarke ‘Occupying “Cheek by Jowl” ’ in S Bright and J Dewar (eds.) Land Law: Th emes and Perspectives (OUP, 1998); K Gray and S F Gray Elements of Land Law(5th edn, OUP, 2009); J W Harris: Property and Justice (Clarendon Press, 1996); F H Lawson and B Rudden: Th e Law of Property (3rd edn, OUP, 2002); R J Smith: Plural Ownership (OUP, 2005); W Swadling: ‘Th e Law of Property’ in A Burrows (ed.): English Private Law (2nd edn, OUP, 2007); S Worthington: Equity (2nd edn, OUP, 2006). Oxford University Press Journals: for extract from Oxford Journal of Legal Studies: A Burrows: ‘We do this at Common Law but that in Equity’ 22 OJLS 1 (2002). Reed Business Information: for an extract from case reports published in Estates Gazette(http://www.egi.co.uk). Springer: for an extract from L Flynn and A Lawson: ‘Gender, Sexuality and the Doctrine of Detrimental Reliance’ Feminist Legal Studies 105 (1995). Sweet & Maxwell: for extracts from N Hopkins: ‘Th e Informal Acquisition of Rights in Land’ (Sweet & Maxwell, 2000) and R Smith: ‘How Proprietary is Proprietary Estoppel’ in F D Rose (ed.): Consensus ad Idem: Essays on the Law of Contract in Honour of Guenther Treitel (Sweet & Maxwell, 1996); extracts from Law Quarterly Review: S Bright: ‘Leases, Exclusive Possession and Estates’ 116 LQR 7 (2000); B C Crown: ‘Severance of a Joint Tenancy of Land by Partial Alienation’ 117 LQR 477 (2001); S Gardner: ‘Th e Remedial Discretion in Proprietary Estoppel—Again’ 122 LQR 492 (2006); J Howell: ‘Th e Human Rights Act 1998: Land, Private Citizens, and the Common Law’ 123 LQR 618 (2007); N Jackson: ‘Title by Registration and Concealed Overriding Interests: Th e Cause and Eff ect of Antipathy to Documentary Proof’ 119 LQR 660 (2003); and R Smith: ‘Mortgagees and Trust Benefi ciaries’ 109 LQR 545 (1990);extracts from Th e Conveyancer: B Bogusz: ‘Defi ning the Scope of Actual Occupation under the Land Registration Act 2002: Some Recent Judicial Clarifi cation’ Conv 268 (2011); S Bright: ‘Th e Th ird Party’s Conscience in Land Law’ Conv 398 (2000); M Dixon: ‘Th e Reform of Property Law and the Land Registration Act 2002: A Risk Assessment’ Conv 136 (2002); B McFarlane: ‘Identifying Property Rights: A Reply to Mr Watt’ Conv 473 (2003); E Paton and G Seabourne: ‘Can’t Get Th ere From Here? Permissible Use of Ease-ments Aft er Das’ Conv 127 (2003); A Robertson: ‘Th e Reliance Basis of Proprietary Estoppel Remedies’ Conv 295 (2008); R Street: ‘Coach and Horses Trip Cancelled? Rent Act Avoidance aft er Street v Mountford’ Conv 328(1985);and L Tee: ‘Severance Revisited’ Conv 105 (1995); and extracts from European Human Rights Reports (EHRR) and Property, Planning and Compensation Reports (P&CR), and an extract from European Human Rights Law Review (EHRLR). Taylor & Francis Books UK: for extracts from S Bridge: ‘Leases: Contract, Property and Status’ and R Smith ‘Th e Role of Registration in Modern Land Law’ in L Tee (ed.): Land Law: Issues, Debates, Policy (Willan, 2002). Th omson Reuters: for extract from L Smith: ‘Fusion and Tradition’ in S Degeling and J Edelman (eds.):Equity in Commercial Law (Lawbook Co, 2005). Reproduced with permis- sion of Th omson Reuters (Professional) Australia Limited, www.thomsonreuters.com.au. Vathek Publishing: for extract from Anglo American Law Review: P Sparkes: ‘Co-Tenants, Joint Tenants and Tenants in Common’ 18 AALR 151 (1989). AcknowledgEments | ix Wiley-Blackwell Publishing Ltd: for extracts from Modern Law Review: M Routley: ‘Tenancies and Estoppel: Aft er Bruton v London & Quadrant Housing Trust’, 63 MLR 424 (2000); and from Legal Studies: J Hill: ‘Intention and the Creation of Proprietary Rights: Are Leases Diff erent?’ LS 200 (1996). Every eff ort has been made to trace and contact copyright holders prior to publication but this has not been possible in every case. If notified, the publisher will undertake to rectify any errors or omissions at the earliest opportunity.