English property law regulates how citizens may own, use, and transfer rights over things, especially land. The legislation and common law decisions that make up property law in England, are relatively unique.
This is because these rules draw a line in the sand between real property (land and immovable structures), and personal property (chattels and intangibles like shares and copyrights) for example.
This article focuses on real property. We consider questions like ‘who owns or occupies the land’, ‘what rights exist over it’, and “how are those rights created, transferred, and enforced’.
History of Property Law in England
The history of English property ownership dates back to the Magna Carta. The bits and pieces were cobbled together into the Law of Property Acts of 1925. This converted complex feudal rules into a more manageable system.
The Land Registration Act 2002, seeks to consolidate property records on a national scale. It establishes a searchable, central property register for England and Wales but this is not comprehensive yet.
Types of Fixed Property Ownership
The Crown owns all land in ultimate title under property law in England. This ‘radical title’ dates from William the Conqueror’s assertion that all land was his by conquest. He then re-granted land to his followers, including the Norman barons, in return for military and other services.
This historical principle means that property owners in England do not have ultimate title, at least in principle. They actually own ‘grants of estates in land’, with varying degrees of control and duration:
- Freehold estate is effectively owned in perpetuity. However it can be sold to a third party, inherited, or mortgaged to access the capital.
- Leasehold estate bestows a right to exclusive possession for a fixed term. After this, ownership reverts to the freeholder, which is the Crown.
Other Rights to English Property
Freehold and leasehold estates are not the only legal devices granting rights over fixed property in England:
- Easements are entitlements to use another person’s land, for example claiming a right of way.
- Restrictive covenants impose obligations restricting land use, for example residential zoning.
- Mortgages use property as collateral. The borrower may not sell the property without the lender’s consent.
- ‘Profits à prendre’ are rights to take something from another person’s land, for example timber or fish.
- Licenses are permissions, not rights, to do something, for example operate a business.
There are two bases for these rights over property in England. The above examples may be enforced by a Court of Law. However, others depend on the principle of fairness. For example, a partner has a right to live in the family home, even if the other partner is the sole owner.
UK Land Registration System
The Land Registry Office records all property transactions in England and Wales. However, this compulsory cornerstone of property law in England is still not fully in place, because land registration only became compulsory in stages.
Older land that has still not been sold, mortgaged, or otherwise transferred since 2002, may still remain officially ‘unregistered’ at this stage. Although almost all of these transactions are noted elsewhere, for example in Court records.
Land Transfers And Property Law
Land ownership transfers through a process that solicitors call ‘conveyancing’. There are three stages to this process:
- The seller and the purchaser agree to the terms of the transaction. This includes setting a price in terms of prevailing market conditions.
- The two parties then agree in writing to the terms and conditions of the transaction. Solicitors call this process an ‘exchange of contracts’.
- The purchaser then pays the seller. However, the process is not legally complete until the transaction is recorded in the Land Register.
If a land transaction is not registered in terms of the property law in England, then ownership may pass by delivery of deeds and equitable interests, in which case the process may involve further legal formalities.
Property Leases and Tenancies
A property lease gives exclusive possession of a property for a period of time, typically in exchange for rent. If an occupier has exclusive possession and pays rent, then they have a lease, no matter how the parties describe the arrangement.
Co-Ownership and Trusts of Land
One or more people may own a piece of property in England. In this case they hold title jointly, regardless of whether the estate is leasehold or freehold. In either situation the beneficial arrangement between them may take one of two forms:
- A joint tenancy with equal shares. If one person dies then their share goes to the other party(s) in terms of their ‘right of survivorship’.
- A tenancy in common, whereby each party owns a separate share. If they die there is no ‘right of survivorship’. Their share is part of their estate.
Fair Value of Property in England
The parties to a property sale or lease, both want a sale price or rental that is fair to them. Property law in England is silent on this matter. It leaves it up to the parties to agree.
An executor of a deceased estate may struggle to determine a property value that is fair to the heirs. They also need to determine a legally correct value for purposes of inheritance tax.
Avery Associates in Greater London has a panel of RICS property surveyors, who know the ins and outs of probate property valuations. They are all qualified, current members of the Royal Institute of Chartered Surveyors. Why not call them now to arrange a meeting whenever it suits you.
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