CHESHIRE AND BURN'S

MODERN LAW OF REAL PROPERTY

Eighteenth Edition

E H BURN BCL, MA Barrister and Honorary Bencher of Lincoln's Inn

Emeritus Student of Christ Church, Oxford Formerly Professor of Law in The City University

J WRIGHT MA Solicitor

Student and Tutor in Law, Christ Church, Oxford Professor Law of Contract, University of Oxford

Professor of Anglo-American Private Law, University of Leiden

OXFORD U N I V E R S I T Y PRESS

CONTENTS

Preface xix

Table of Statutes xxiii

Table of Statutory Instruments

Table of Cases

Abbreviations

PART I I N T R O D U C T I O N

1 AN INTRODUCTION TO LAND LAW 3

I Property Rights 4

A Property Rights and Personal Rights 4

B Third Parties and Property Rights 4

II Real Property 5

III The Meaning of Land 6

A Distinction between Corporeal and Incorporeal Hereditaments 7

B Fixtures 8

IV Development of Modern Land Law 12

A Feudal Basis Law. Tenures and Estates 12

B The Significance of Possession within the Land Law

C Common and Equity 14

D Legislative Reforms of Nineteenth Century and the

Impetus to the Reforms

E Law of Property Act 1922. Assimilation of Real and Personal Property

F Legislation 1925. Consolidating Acts 18

G Further Developments in 1996 and 2002 19

V Oudine of Rights in Land and their Creation and Transfer 20

A Estates and Interests in Land 20

B Creation of Estates and Interests 21

C Transfer Estates and Interests 21

VI Land Law and Human Rights 22

PART II T H E M O D E R N LAW IN H I S T O R I C A L C O N T E X T

A ORIGINS OF THE MODERN LAW 27

2 THE COMMON LAW SYSTEM 29

I The Doctrine of Tenure 29

A Feudalism in Europe 29

CONTENTS

B Feudalism in England 32

C Forms of Tenure 36

II The Doctrine of the Estate 48

A Seisin. Possession not Ownership 48

B Features of the Doctrine of the Estate 52

C Leasehold Interest. of Years 57

D Classification of Property 59

3 MODIFICATION OF THE COMMON LAW BY EQUITY 61

I Disadvantages Incidental to the Common Law Tenures 62

A Conveyances were Required to be Public and Formal 62

B Types of Interests were Strictly Limited 63

C A Tenant at Common Law could not Devise his Freehold Estate 63

D A Tenant at Common Law was Liable to

Certain Onerous Feudal Incidents 64

II Disadvantages of C o m m o n Law Tenures Avoided by the

Device of Putting Lands in Use 65

A Origin and Effect of Putting Lands in Use 65

B Creation of the Distinction Between the Legal

and the Equitable Estate 68

C Advantages of Putting Lands in Use 69

D Influence of Common Law Doctrines on the Use 71

E The Later History of Uses and the Rise of the Modern Trust Estate 72

III The Essential Difference Between the Legal and the Equitable Estate 78

A Nature ofthe Trust Estate 78

B Difference between Legal and Equitable Estate 80

C The Doctrine of the Bona Fide Purchaser for Value of the Legal Estate Without Notice 83

D Other Forms of Equitable Interests 91

4 SETTLEMENTS BEFORE 1926 94

I The Strict Settlement 95

A Form of Setdement 95

B Disadvantages of Setdement 97

C Statutory Reform

II The Trust for Sale 103

III Summary of Two Methods of Settling Land before 1926 105

B THE MODERN LAW 107

5 THE SIMPLIFICATION OF THE LAW: 1925, 1996 AND 2002 109

I Simplification Law of Real Property in 1925

A The Reduction of Tenures to One Common Form

B The Assimilation of Real and Personal Property Law

C The Abolition Certain Anachronisms

CONTENTS Vii

II Simplification of Conveyancing in 1925, 1996 and 2002

A Contract before Conveyance 120

B Unregistered Conveyancing 121

C Registered Conveyancing 131

D Comparison of Unregistered and Registered Systems in the Modern Law

P A R T I I I E S T A T E S A N D I N T E R E S T S I N L A N D

A FREEHOLD ESTATES 149

6 THE ESTATE IN FEE SIMPLE ABSOLUTE IN POSSESSION 151

I Definition 151

A Fee Simple 151

B Absolute 152

C In Possession 154

II Mode of Creation 155

A Words of Limitation 155

B Voluntary Conveyance 157

C Registered Land 158

III The Legal Position of a Tenant in Fee Simple

A Extent of Ownership 158

B Restrictions on Ownership 167

7 COMMONHOLD 169

I Nature of Commonhold 169

II Aims of the Legislation Introducing Commonhold 170

III The Commonhold Scheme 171

A Commonhold Land

B Registration ofthe Title to Commonhold Land 172

C The Commonhold Association 172

D The Commonhold Community Statement 173

E Transfer of Commonhold Units 174

F Leases and Charges of Commonhold Units 174

G Termination of Commonhold 175

B LEASEHOLD ESTATES 177

8 GENERAL CHARACTERISTICS AND CREATION OF LEASES 179

I General Characteristics a Lease 180

A Terminology 180

B The Lease as an Estate or Interest in Land.

Legal and Equitable Leases

C The Lease as a Contract 182

Viii CONTENTS

D The Essentials of a Lease 184

E The Right to Exclusive Possession 185

F The Term

II Tenancies at Will and at Sufferance, Periodic Tenancies

and Tenancies by Estoppel 201

A Tenancy at Will 201

B Tenancy at Sufferance 203

C Tenancy from Year to Year and Other Periodic Tenancies 204

D Tenancy by Estoppel 208

III Creation of a Lease 210

A Contract for a Lease 210

B Lease 210

9 COVENANTS IN LEASES 223

I Rights and Duties of Landlord and Tenant 223

A Position where there are no Express Covenants or Conditions 224

B Position where there are Express Covenants and Conditions 241

II Remedies of the Landlord for the Enforcement of the Covenants 269

A Covenant to Pay Rent 269

B Covenants Other than the Covenant to Pay Rent 287

III The Effect of Assignment on Covenants 302

A Covenants in Leases Granted Before 304

B Covenants in Leases Granted After 1995 320

10 TERMINATION OF LEASES AND RECOVERY OF POSSESSION BY THE LANDLORD 329

I Termination a Lease 330

A Effluxion of Time 330

B Termination by Notice 331

C Forfeiture 339

D Repudiation 339

E Surrender 340

F Merger 342

G Enlargement 343

H Frustration 343

I Effect of Termination of Head Tenancy on Sub-Tenancy 345

J Termination of Tenancy at Will 346

II Recovery of Possession by the Landlord 346

A Re-entry by the Landlord 347

B Leases of Dwellings. Requirement of Court Order to Recover Possession 348

C Criminal Offences of Unlawful Eviction and Harassment 348

D Damages for Unlawful Eviction or Harassment 349

E Impact of the Human Rights Act 1998 on the

Landlord's Claim for Possession 350

CONTENTS

STATUTORY CODES FOR SPECIAL LEASES 357

I Private Residential Lettings 358

A Assured Tenancy 360

B Assured Shorthold Tenancy 367

C Control Rent 369

D Security of Tenure 371

II Public Sector Housing. Secure Tenancy 383

A Definition a Tenancy 383

B No Control of Rents 384

C Security of Tenure 385

D Demoted Tenancy 386

E Introductory Tenancy 387

F Succession 388

G Right to Buy 389

III Long Tenancies 389

A Leasehold Reform Act 1967 390

B Landlord and Tenant Act Part I.

Local Government and Housing Act 1989 398

C Leasehold Reform, Housing and Urban Development Act 1993 400

D 'Right to Manage' 405

IV Business Tenancies 406

A The Qualifying Tenancy 407

B Exclusions 409

C Security of Tenure and Rent 409

V Agricultural Tenancies 417

A Agricultural Holdings 417

B Farm Business Tenancies 420

VI Residential Flats. Tenants' Rights of First Refusal 424

VII Law Reform 425

C EQUITABLE BENEFICIAL INTERESTS IN LAND 429

12 THE STRICT SETTLEMENT AND THE TRUST FOR SALE BEFORE 431

I The Strict Settlement 432

A The Definition of a Settlement under the

Settled Land Act 1925 432

B The Machinery a Settlement after 1925 436

C The Tenant for Life 440

D The Trustees ofthe Settlement 455

E Capital Money 458

II The Trust for Sale Before 462

A The Definition of a Trust for Sale 462

B The Doctrine Conversion 465

CONTENTS

C The Powers ofthe Trustees for Sale 466

D Statutory Trusts for Sale 470 III Defects in the Dual System Settlements 471

13 THE TRUST OF LAND 474

I The Trust Land 474

A No New Strict after 1996 475

B Meaning of Trust of Land 475

II Functions of Trustees of Land 479

A General Powers 479

B Exclusion and Restriction of Powers 480

C Delegation by Trustees 481

III Beneficiaries Under a Trust of Land 483

A Consents 483

B Consultation with Beneficiaries 484

C Rights of Occupation 485

IV Protection of Purchasers 486

A Overreaching 486

B Limitation on Powers and Consent Requirements 487

C of Discharge 488

V Powers of the Court 488

A General 488

B Bankruptcy 490

14 CONCURRENT INTERESTS 492

I Concurrent Ownership at Law and in Equity 492

A Several and Concurrent Ownership 492

B Co-ownership at Law and in Equity 493

II Forms Concurrent Ownership 493

A Joint Tenancy 493

B Tenancy in Common 496

III Concurrent Interests in the Modern Law 499

A Conveyancing Difficulties Before 1926 499

B Scheme of the 1925 Legislation and the Trusts of Land and

Appointment of Trustees Act

IV Establishing the Beneficial Interests 512

A Express, Constructive and Resulting Trusts 512

B The Family Home 519

V Party walls 524

15 FUTURE INTERESTS. THE RULES AGAINST PERPETUITIES AND ACCUMULATIONS OF INCOME 526

I Future Interests the Problem of Perpetuity 526

A Future Interests 526

CONTENTS

B Application Modern Rule against Perpetuities.

Effect of the Legislation of 1925 528

II The Modern Rule Against Perpetuities 528

A Three Rules Against Perpetuities. 528

B The Rule Applicable to Instruments Taking Effect Before

16 July 1964: the Common Law 530

C The Rule Applicable to Instruments Taking Effect After

15 but Before 6 April 2010: the Perpetuities and

Accumulations Act 1964 558

D The Rule Applicable to Instruments Taking Effect After

5 April 2010: the Perpetuities and Accumulations Act 2009 575

III The Rule Against Accumulations of Income 577

A The Rule Applicable to Instruments Taking Effect Before 6 April 2010 579

B The Rule Applicable to Instruments Taking Effect After 5 April 583

16 ENTAILED INTERESTS AND LIFE INTERESTS 584

I Entailed Interests 584

A History 585

B Creation of Entailed Interests 589

C Entailed Interests After 1925 598

D No New Entailed Interests After 1996 605

II Life Interests 605

A Life Interests in the Modern Law 605

B Classes Life Interests 607

C The Rights and Obligations of a Tenant for Life 608

17 DETERMINABLE INTERESTS AND INTERESTS UPON CONDITION SUBSEQUENT 612

I Determinable Interests

A Definition and Terminology 612

B Determinable Fee Simple 613

C Determinable Life Interest 614

D Determinable Term of Years 615

II Interests upon Condition Subsequent 616

A General Nature and Effect 616

B Void Conditions 620

D OTHER LEGAL AND EQUITABLE INTERESTS IN LAND 631

18 EASEMENTS AND PROFITS 633

I Easements and Profits as Property Rights 633

II Easements 634

A Nature of Easements 634

B Easements Distinguished from Other Rights 649

C Legal and Equitable Easements 650

CONTENTS

D Acquisition of Easements 651

E Extent of Easements 686

F The Running Benefit and the Burden an Easement 690

G Remedies for Infringement of an Easement 694

H Extinguishment of Easements 696

III Profits a Prendre 701

A Nature of Profits a Prendre 701

B Classes of Profits a Prendre 704

C Legal and Equitable Profits a Prendre 712

D Acquisition of Profits a Prendre 712

E The Running of the Benefit and the Burden of a Profit a Prendre

F Extinguishment of Profits a Prendre 715

IV Rights in the Nature of Easements and Profits a Prendre

Acquired by Fluctuating and Undefined Classes of Persons 717

A Rights in the Easements 717

B Rights in the Nature of Profits a Prendre 720

V Law Reform 723

19 COVENANTS 726

I Introduction 726

II The Defendant Must Have the Burden of the Covenant 728

A Burden does not Run with the Land at Common Law 728

B Burden of a Restrictive Covenant may Run with the Land in Equity 732

III The Claimant Must the Benefit ofthe Covenant 741

A Enforcing the Covenant as an Original Beneficiary 741

B Enforcing the Covenant as a Successor at Common Law 744

C Enforcing the Covenant as a Successor in Equity 746

IV Remedies for Breach of Covenant 759

A Positive Covenants 759

B Restrictive Covenants 760

V Discharge and Modification of Restrictive Covenants 763

A Position at Common Law 763

B Section 84 of the Law of Property Act 1925 764

C Housing Act 773

D Town and Country Planning Act 1990 773

VI Law Reform 774

VII Covenants and Planning 777

20 RENTCHARGES 779

I Nature of a Rentcharge 779

A Origin and History 779

B Legal and Equitable 780

C Rentcharge on a Rentcharge 781

CONTENTS

II Examples of Rentcharges

A Land 781

B Secured Family Annuities

C Positive Covenants 782

III Rentcharges Act 1977 782

IV Creation a Rentcharge 783

A By Instrument Inter Vivos 784

B By Will 784

C By Statute 785

D Registered Land 786

V Remedies for the Recovery a Rentcharge 786

A Distress 786

B Entry upon the Land Charged 787

C Lease to Trustees 787

D Action for Payment 788

VI Extinction of a Rentcharge 790

A Release 790

B Merger 790

C Lapse Time 791

D Statute 791

21 MORTGAGES 793

I Introduction 793

II Creation of Mortgages 797

A The Modern Law in Historical Perspective 797

B Methods of Creating Mortgages Today 803

III Rights ofthe Mortgagor 814

A The Equity of Redemption 814

B Rights a Mortgagor who Remains in Possession 842

IV Rights ofthe Mortgagee 845

A Rights of Legal Mortgagee 845

B Rights of Equitable Mortgagee 870

V of Mortgages 872

A Priority of Mortgages Before 1926 873

B Priority After 1925 883

VI Law Reform 899

A Law Commission Report on Land Mortgages 1991 899

B Limitation of Actions 902

22 EQUITIES AND PROPRIETARY ESTOPPEL 903

I Mere Equities 903

A Nature an Equity 903

B Proprietary Characteristics of Equities 904

Xiv CONTENTS

II Proprietary Estoppel 906

A Different Forms of Estoppel 906

B The Development of Proprietary Estoppel 908

C The Modern Law of Proprietary Estoppel 909

D The Limits of Proprietary Estoppel 919

E Proprietary Estoppel as an Interest in Land 920

E LICENCES 923

23 LICENCES 925

I The Licensee at Common Law 926

A Bare or Gratuitous Licence 926

B Licence Coupled with a Grant or Interest 926

C Contractual Licence 927

D Remedies for Wrongful Revocation 927

II Contractual Licence: the Intervention of Equity 928

III Contractual Licence and Third Parties 930

IV Licence Protected by Constructive Trust 933

V Licence Protected by Proprietary Estoppel 936

A The Doctrine in 936

B Illustrations of the Remedies Available to Protect Licensee 937

C Third Parties

D Termination of Licence 942

VI Conveyancing Difficulties 942

P A R T I V T H E C R E A T I O N , T R A N S F E R A N D E X T I N C T I O N OF E S T A T E S A N D I N T E R E S T S I N L A N D

24 THE CONTRACT 949

I Formation Contract 950

A Pre-contract Enquiries and Disclosure 950

B Terms of the Contract.'Open Special Conditions of Sale 953

C Negotiations or Agreement 'Subject to Contract' 955

D Lock-out Agreement 957

E Exchange of Contracts 958

II Formalities Required for Contracts for the Sale or

Other Disposition of an Interest in Land 959

A Contracts Made Before 27 September 1989. Evidence of Contract 961

B Contracts Made After 26 September 1989. Requirement of Writing 966

HI Effect of Contract 978

A Contract Equivalent to Conveyance in Equity.

The Doctrine of Walsh v Lonsdale 978

B Contract of Sale. Vendor as Trustee for Purchaser 979

C Registration of Contract 982

CONTENTS XV

Option to Purchase and Right of Pre-emption 983

A Option to Purchase 983

B Right of Pre-emption 985

V Remedies of Parties to the Contract 986

A Remedies Relating to the Formation of the Contract 986

B Remedies for Breach of Contract 990

25 FORMALITIES REQUIRED FOR THE CREATION AND TRANSFER OF ESTATES AND INTERESTS IN LAND 999

I Introduction 999

II The Formalities 1001

A Formalities for the Creation and Transfer of

Legal Estates and Interests 1001

B Formalities for the Creation and Transfer of Equitable Interests

III Failure to Comply with the Required Formalities.

The Informal Creation of Interests in Land

A General

B The Doctrine of Walsh v Lonsdale

C Resulting or Constructive Trust

D Proprietary Estoppel 1014

26 CAPACITY TO ACQUIRE, HOLD AND TRANSFER ESTATES AND INTERESTS IN LAND 1018

I Minors 1018

A 1018

B Definition of Minority 1019

C Minor May Not Hold Legal Estate

D Acquisition and Alienation by Minor of

Equitable Interests in Land

E Management of Minor's Property 1025

II Married Women 1026

A Common Law

B Equity 1026

C Statute 1027

D The Modern Law

III Persons Lacking Mental Capacity 1028

A Jurisdiction 1028

B Definition Lack of Capacity 1029

C Decisions Taken by the Court or a Deputy

Appointed by the Court

D Lasting Power of Attorney

IV Corporations 1032

A Nature of Corporations 1032

B Classification of Corporations 1032

CONTENTS

C Methods of Creation 1033

D Doctrine of Ultra Vires 1034

E Capacity to Deal with Land

V Charities 1036

A Restrictions on Disposition 1037

B Exempt Charities 1038

27 UNREGISTERED CONVEYANCING 1039

I Introduction 1039

II Stages in a Conveyancing Transaction 1041

A Delivery of Abstract 1042

B Perusal of Abstract 1042

C Conveyance 1042

III Rights and Duties of the Parties 1042

A Rights and Duties under an Open Contract

B Contracts Containing Special Stipulations 1051

IV The Conveyance 1052

A Necessity for a Deed 1052

B Conveyance by a Person to Himself 1052

C The Form of a of Conveyance on Sale 1053

V Land 1053

A Protection of Interests by Registration

B Overreaching 1068

28 REGISTERED CONVEYANCING 1070

I Introduction 1071

II The Register 1071

A Scope Tide Registration 1071

B Arrangement Register 1072

C Inspection of the Register 1073

III First Registration of Title 1073

A Compulsory Registration 1073

B Voluntary Registration

C Demesne Land ofthe Crown. Special Rules 1075

D Classes of Title 1076

E Cautions Against First Registration 1079

IV Conclusiveness the Register. Alteration and Rectification 1079

A Rectification under the 1925 Act 1080

B Alteration and Rectification under the 2002 Act

C Indemnity 1082

V Dispositions of Registered Land 1084

A Owner's Powers in Relation to a Registered Estate

B The Machinery of Transfer of Registered Land 1084

CONTENTS

VI The Priority of Competing Interests in Registered Land 1095

A The Basic Rule: Date of Creation

B Exceptions to the Basic Rule

C Protection of Interests by Entry on the Register

D Overriding Interests

E Overreaching

VII Electronic Conveyancing

29 EXTINCTION OF ESTATES AND INTERESTS IN LAND 1123

I Merger

A Meaning of Merger

B Merger at Common Law

C Merger in Equity

II Adverse Possession

A The Significance of Possession in the Modern Law

B Lapse of Time, Prescription and Limitation of Actions

C Unregistered Land. Limitation Act 1980

D Land. Acts 2002 1158

E Adverse Possession and Human Rights

Select Bibliography

Index