Nature of Land and Property — SQE1 FLK2 Land Law

A woman has contracted to sell her house. In the sitting room there is a large ornamental mirror, bolted to the wall with four bolts so that it hangs safely. In the kitchen there is a free-standing fridge, plugged in, standing between two units. The contract says nothing about either of them. The buyer says both must stay. Which can she take? Both.

Which surprises people, because one of them is bolted to a wall. And that is the first lesson in land law: what counts as land is not settled by how firmly something is attached. This episode is the foundation for the whole subject. What land is, what estates you can hold in it, and how ownership is proved. Keep the mirror in mind.

Here is the route. What land actually includes. Then real property against personal property, and the fixtures test that decides who takes the mirror. Then the two legal estates, and why everything else is equitable. Then co-ownership: joint tenancy, tenancy in common, and severance. And last, the two systems of title, registered and unregistered.

Start with the word itself, because in law it means far more than the surface. Land includes the surface, anything built on it, anything growing on it, the airspace above it to a reasonable height, and the subsoil beneath it to a reasonable depth. It also includes things attached to it, which is where the arguments start.

Then the oldest division in English property law. Real property, or realty, means freehold interests in land. Personal property, personalty, means everything else: physical movable objects, and intangible rights like debts and shares. And one oddity you need to know. Leasehold estates are interests in land, but they are historically classified as personalty, as chattels real.

Which brings us to fixtures and chattels, and the practical reason it matters. A fixture passes automatically with the land when it is sold or mortgaged. A chattel does not, unless the contract specifically includes it. So the classification decides who owns the mirror, and it decides it silently, because the contract said nothing.

The test comes from Holland v Hodgson, from 1872, and it has two stages. First, the degree of annexation: how firmly is the item attached? Second, the purpose of annexation: why was it attached? Both matter, but the purpose is the more important. In that case, looms were nailed to the floor of a worsted mill. Fixtures, because they were annexed for the better use of the building as a mill.

Now the other side of the line. In Leigh v Taylor, from 1902, valuable tapestries were fixed to the walls of a house so that they could be displayed. Chattels, because they were attached for the better enjoyment of the tapestries themselves, not to improve the house. Which is your mirror exactly. Bolted, yes, but bolted so it could hang safely. And the fridge simply rests where it stands. Both chattels. Both hers.

Try two quick ones. A fitted kitchen, built into the room. Fixture or chattel? Fixture. A free-standing washing machine? Chattel. And a satellite dish, or a garden shed? Those need the full test, both stages, every time.

One exception worth carrying. Trade fixtures. Items a tenant installs for the purposes of their trade, such as machinery, shelving or counters, may be removed by the tenant. The conditions: take them before the lease ends, and repair any damage caused by removing them.

Estates now. Before 1925 there were many kinds of legal estate, and conveyancing was correspondingly awful. Then s.1(1) of the LPA 1925 cut them to two. An estate in fee simple absolute in possession, and a term of years absolute. That is the entire list. Every other interest in land can exist only in equity. Learn that sentence, because it does an enormous amount of work.

Take the first apart, because each word earns its place. Fee simple: the estate is of potentially infinite duration and can be inherited. Absolute: it is not subject to a condition that could bring it to an end. In possession: the owner has the right to immediate occupation. Freehold, in other words, and the closest thing to outright ownership English law recognises.

The term of years absolute is leasehold. A fixed period with a clear beginning and end, anything from a few days to 999 years. It is a property right in its own right: it can be sold, mortgaged and inherited. And when the term expires, possession reverts to the freeholder.

Everything else is equitable. Beneficial interests under a trust of land. Interests under resulting or constructive trusts. Interests arising by proprietary estoppel. Restrictive covenants. Equitable easements and equitable mortgages. And the difference is not academic. Legal estates are created formally, by deed. Equitable interests can arise informally, and they may need protecting on the register, or through the doctrine of notice, to bind a third party.

Which is why the first question in any land law problem is always the same. Is this interest legal, or equitable? The answer tells you how it was created, how it is transferred, and, most importantly, whether it binds the person who has just bought the land.

Co-ownership next, and one rule shapes all of it. Where two or more people own land, the legal estate can only be held as a joint tenancy. There is no such thing as a legal tenancy in common. And the maximum number of legal owners is four, under s.34(2). The beneficial interests behind it, though, can be held either way.

So can two people hold the legal estate as tenants in common? No. Never. Only the beneficial interest can be held that way.

In a joint tenancy nobody has a share. Each co-owner is entitled to the whole. The four unities must be present: possession, interest, title and time. And the defining feature is the right of survivorship. When one joint tenant dies, their interest accrues to the survivors automatically, whatever their will says. That last clause is worth a mark on its own.

In a tenancy in common, each co-owner has a distinct, identifiable share, and the shares can be unequal. There is no survivorship: on death the share passes under the will, or on intestacy. Only two unities are needed, possession and title. And it can exist only in equity, because the legal estate is always a joint tenancy.

Which makes severance important, because severance converts a joint tenancy into a tenancy in common and switches survivorship off. Four routes. Written notice under s.36 of the LPA 1925. And three more from Williams v Hensman, from 1861. An act of one joint tenant operating on their own share. Mutual agreement. Or a course of dealing showing they treated the tenancy as severed.

Where land is co-owned, it is held on a trust of land, under the Trusts of Land and Appointment of Trustees Act 1996. The trustees hold the legal estate, as joint tenants, up to four of them. The beneficiaries hold the equitable interests, and under s.12 of that Act they may have the right to occupy the land.

Last, the two systems of title. Under the registered system, the Land Registry maintains a register recording who owns the land and what affects it. Under the unregistered system, ownership is proved by the title deeds. Since 1 December 1990 it has been compulsory to register most dealings with unregistered land, so the unregistered system is slowly disappearing.

The register has three parts, and knowing which is which is free marks. The property register describes the land and the rights attached to it. The proprietorship register names the legal owner, and any restriction on their power to deal with it. The charges register records mortgages and other charges.

Two more features of the registered system. The state guarantees the accuracy of the register, and an indemnity is payable under Schedule 8 of the LRA 2002 if it turns out to be wrong. And some interests, called overriding interests, can bind a purchaser even though they never appear on the register at all.

With unregistered land there is no central record. A purchaser proves title through the chain of deeds, and must investigate manually. Legal interests bind a purchaser regardless of notice. Equitable interests bind only if the purchaser has notice, whether actual, constructive or imputed. And land charges are registered against the name of the estate owner, under the Land Charges Act 1972.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. The names here are memory pegs, and in this topic the statutes do more of the work than the cases.

If you keep only three. The two legal estates in s.1(1) of the LPA 1925, because everything else in land is equitable. The right of survivorship, because it beats a will every time. And Holland v Hodgson, because the purpose of annexation, not the number of bolts, decides what counts as part of the land.

Traps the examiners set. One: the degree of annexation is never decisive on its own. A bolted mirror can be a chattel. Ask why it was attached, not how firmly. Two: an owner attaching something to her own house does not thereby make it a fixture.

Three: there is no legal tenancy in common, and no more than four legal owners. If a question gives you five buyers, the legal estate cannot be held by all five. Four: survivorship operates at the moment of death, before a will can bite, so severance has to happen in the joint tenant's lifetime.

Five: do not write off unregistered land. It still exists and it is still examinable, and the rules there are different. The doctrine of notice governs, not the register. Six: legal interests bind a purchaser of unregistered land whatever they knew. Only equitable interests turn on notice.

And seven. Leasehold is an interest in land, governed by land law, but it is classified as personalty rather than realty. It sounds like a technicality right up until it is the answer.

Quick check. A man and a woman bought a house together twelve years ago. They were registered as joint proprietors, and the transfer declared that they held the beneficial interest as joint tenants. Nothing was ever done to change that. Last year the man made a valid will leaving his entire estate to his brother. The man has now died, and the brother says half the house is his.

Three candidate answers. One: the brother, because the will disposed of the man's share with the rest of his estate. Two: the woman, because on the death of a joint tenant the deceased's interest accrues to the surviving joint tenant. Three: the woman and the brother in equal shares, because the man's death severed the joint tenancy. Pause here if you want a moment.

The answer is two. Joint tenants hold no distinct shares. On death, the deceased's interest accrues to the survivor, who then owns the whole. Survivorship operates at the moment of death and takes effect before the will can bite. The woman is now sole legal and beneficial owner, and the brother takes nothing.

Why the others fail. One assumes the man had a share to leave. He did not, because the joint tenancy was never severed. Three has death doing the severing, and it does not. Severance must happen in a joint tenant's lifetime, by written notice or by one of the three routes from Williams v Hensman.

Five things to take away, and the mirror covers the first. One: fixtures pass with the land, chattels do not, and the purpose of annexation decides which is which. Bolted to a wall for display is still a chattel.

Two: there are exactly two legal estates. Fee simple absolute in possession, and term of years absolute. Everything else in land is equitable. Three: the legal estate can only be co-owned as a joint tenancy, by no more than four people.

Four: the right of survivorship beats a will, so severance has to happen while the joint tenant is alive. Five: registered land is proved by the register in its three parts, unregistered land by the deeds and the doctrine of notice. Next time, Legal and Equitable Interests in Land.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.