Legal Aspects of Property
Property law is concerned with ownership and management (in the form of tenancies) of real property (Real Estate and Land as distinct from personal or movable possessions) and in personal property, within the common law legal system.
In the civil law system (as opposed to criminal law), there is a difference between movable and immovable property. Movable property roughly corresponds to personal property, while immovable property corresponds to real estate or real property, with all the associated rights and obligations developed over many hundreds of years.
The concept or philosophy of property ownership and legal rights underlies all property law. In some jurisdictions, particularly in Europe, historically all land and property was owned by the monarch and it devolved through the feudal system of land tenure or other feudal systems of loyalty and fealty.
The Napoleonic Code was perhaps the first government act of modern times introducing the concept of absolute ownership into statute; protection of personal property rights was present in medieval Islamic law and jurisprudence and in more feudalist forms in the common law courts of medieval and early modern England.
Statute and Property Law
Major statutory reforms affecting land law in England and Wales were brought in by the Law of Property Act 1925. This act effectively confirmed the relative ownership model in which the “fee simple absolute in possession” (freehold) and the “term of years” (leasehold) are now the primary methods of signifying the greatest interest inland.
The Land Registration Act 1925 (LRA 1925), continued a system of title by registration introduced in the Victorian era.
Statutory developments since these major reforms have been sporadic and of minor impact until the Land Registration Act 2002 (LRA 2002), which came into force on 13 October 2003. This Act deals not only with registration issues but with some substantive changes to land law. This article looks at some of the changes that were introduced by this Act as well as some proposals for future changes.
Various Housing Acts brought in throughout the 20th Century introduced statutory protection for residential tenants whereas the Landlord and Tenant Act 1954 is largely concerned with Business Tenancies.
Where a leaseholder (tenant) has lease and its terms permit subletting, he may grant shorter leases to sub-tenants. This situation can create a chain of ownership of rights over the land. Subsequent sub-tenants will have possession and use of the land, in accordance with the terms of the sub-lease.
The granting of a lease (tenancy) is the granting of the right to possess the land for a certain period of time or “term certain”, subject to the payment of rent and to complying with covenants contained in the lease. Tenancies can be for a fixed-term (example 5 years) or periodic (example a rolling monthly tenancy), or for an unspecified short term “Tenancy at Will”. Once a fixed term has ended, if the tenant remains in occupation, the tenancy automatically becomes a “periodic tenancy” based on the timing of rent payments, e.g., monthly of quarterly.
Statutory Tenant Protection
The parties to a lease or tenancy agreement (freeholder, landlord and tenant) may agree a contractual tenancy, subject to regulation by Act of Parliament. The parties cannot normally ‘contract-out’ of the statutory rules by any form of private agreement in the lease. In other words statutory rules override contract and common law. Generally, statutory rules are enacted to provide protection to both parties but often the one in the weaker bargaining position, the tenant, is afforded the greater degree of protection.
Licences to Occupy Land
Licences to occupy are somewhat less than leases and do not grant ‘possession’ or a legal interest in the land, which is the usual right of exclusive occupation. One example of a license is that of a lodger in a landlord’s home. The lodger has no exclusive possession of any part, and shares facilities. The landlord has total control though there is a small element of protection in that even residential licensees can appeal to the courts against summary eviction.