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Course of Study:
(08-21215) Land Law for LLB and LLB for Graduates

Title:
Land law; themes and perspectives (‘Before We Begin: Five Keys to Land
Law’ )

Name of Author:
Bright, Susan. & Dewar, John.

Name of Publisher:
Oxford University Press
 18
B E F O R E W E B E G IN : F IV E K E Y S T O L A N D LA W
Peter Birks

Land Law is a complex subject. It is not in the end a very difficult one. It is
less unstable than other areas of the law. Yet it is hard to get into. The pur­
pose of this chapter is to make access easier. It is impossible to improve
access to a completely unknown quantity. The first section, therefore, asks
what kind of category we are trying to understand.

WHAT KIND OF CATEGORY?

The name ‘land law’ suggests a simple contextual category: aU the law about
land. The law does use many such categories, ordered only by the alphabet:
all the law about aviation, banks, commerce, dogs, education, and so on.
They take as their subject some aspect of life, just as a non-lawyer would
identify it. But in this case things are not quite so straightforward. By the
end of this section we will have formulated a more complex proposition:
land law, as generally understood, is a contextual subset of a legal-
conceptual category.
The Sodo~Historical Context
It will help to start with some background. The role of land, and hence of
land law, has changed dramatically since the Industrial Revolution and the
rise of the limited liability company. The paragraphs which follow sketch in
that change and two others.
The Managed Fund
For institutions and individuals with serious wealth, land has lost its central
role. The managed fund has displaced the rolling acres. Land used to be the
pre-eminent form of wealth. Landed property was the focus of dynastic
ambition. Land opened the door to high social status and political power.
A landed family had by that fact alone a stake in governmental power.
Keeping land in the family mattered. That has changed. Land, important as
it is, has lost its pride of place. For the mega-wealthy, land has become just
one species of investment, just as agriculture has become just one more
 458 PETER BIRKS

industry. Pension funds and wealthy institutions hold mixed portfohos.

They hold some land, some works of art, and many shares in many com­
panies. Rich individuals do the same. The dynastic urge has been translated,
with one eye constandy on the tax man, into trust funds and private com­
panies.^
The image of land tied into one family is therefore out of date. Among
the technicalities ofland law we shall briefly encounter the phenomenon of
‘overreaching’ which enables interests to be detached from the land and
attached instead to the money obtained by selhng it. Lawyers and legislaton
have encouraged the use of that mechanism and others scarcely distin­
guishable from it. Such mechanisms vividly illustrate the shift towards treat­
ing land as just another tradeable asset. The policy is to keep the land itself
as easily tradeable as possible.
A pale reflection of dynastic ambition is the natural anxiety on the part
of those who have the necessary resources to meet the family’s needs for
accommodation. That can be done through out-and-out gifts, though
without achieving any layering to reflect the needs o f different generations.
Statute has recently made it easier to achieve that layering through the use
of a trust of land.^ Without a survey of the intentions of the very rich, it is
impossible to say whether that limited frcility will encourage in a minor key
a recrudescence of the dynastic urge to tie up land. Even if it does, it will
not be on a scale to challenge the hegemony of the managed fund.
The Fragility of the Environment
The notion of land as scarce and fragile is relatively new. The Industrial
Revolution created a few black spots, Blake’s dark, satanic mills were terri­
ble to behold, but local. It is only relatively recently that we have realized
that our transport systems, our power stations, our industrial processes, and
our intensive agricultural methods have the potential utterly to destroy this
green and pleasant land. The private law of nuisance, the historic role of
which was to control annoying activities as between one neighbour and
another, cannot sufficiently express the social interest in the safety of this
scarce resource.^ Protection of the environment means more social control
^ On the basic structure of funds, see Lawson and Rudden, The Law of Property (2nd edn.,
Oxford; Oxford University Press, 1982), 38~9, 105—13,
^ This facility has been hidden in the actual practice of what are called ‘trusts for sale', but
the new Trusts of Land and Appointment of Trustees Act 1996 has brought the matter out
into the open, allowing beneficiaries in certain circumstances to have a right of occupation.
^ For a superb account of the tort of nuisance battling with the Industrial Revolution, see
Simpson, Leading Cases in the Common Law (Oxford; Oxford University Press, 1995), 163,
on Tippm^ v. St. Helen's Smelting Company (1865) 4 B & S 608, 616; 122 ER 588, 591. The
law of tort will not prevent obstruction of the flow of television waves {Hunter v. Canary
Whafpic [1997] 2 All ER 426) any more than deliberate interruption of water percolating
through the ground {Bradford Corporation v. Pickles [1895] AC 587).
 FIVE KEYS TO LAND LAW 459

of land use. There will have to be more planning control, more conserva­
tion legislation, more anti-pollution legislation. The tradition o f freedom
reacts against this heavy pubHc control, but there is no other way. The
energy available to defend our freedom will be best directed, not against
social control, but towards ensuring that we have an ethos, and a legal
system, which keeps the necessary bureaucracy humane, incorruptible, and
transparent.
Public-Sector Housing
Local government is nowadays a powerful force in the provision of hous­
ing, adding a public law dimension new to land law as it has been histori­
cally determined. During the Thatcher era the public sector experienced an
upheaval, pardy from shortage of money, partly from being opened to the
private market through the right-to-buy legislation."^ That legislation was
driven by the vision of a property-owning democracy in which citizens
would have both the independence and the responsibility of people of sub­
stance. Sadly some bad effects followed. The public-sector housing stock
was diminished, and a fall in the price of houses left many buyers financially
overcommitted. Many repossessions followed. It is too early to say whether
the advent of a new Labour government will revivify the sector and replen­
ish the supply of public housing. The public sector ultimately rests on con­
cepts identical to those of the private sector, overlaid by principles of public
law and a mass of highly technical legislation. It is in every way a part of
land law, but, because of the mass of detail, it has become a specialism. As
a lawyer you have at some stage to decide whether to make yourself an
expert in that field. The same is largely true of the statutory regime con­
trolling the relations of landlord and tenant in the private sector.^
The Core of Land Law
A target has a centre. Taking land law as a simple contextual category, we
can identify at least five topics, all of which have already figured in the dis­
cussion. Four of these must on reflection be located in the second or third
circles, just outside the bull’s-eye at which we are aiming. They matter, but
they do not relieve us of the intellectual necessity of mastering the core.
Two belong largely in public law. One of these comprises the social con­
trol essential if the environment is to be protected. The other is the hous­
ing law which applies to local government tenancies. Within private law, a
third unit Hes in the law of civil wrongs and deals with the duties imposed
Housing Act 1980, followed by the Housing Act 1985.
= Entry to this specialism and its relation to the public sector is now made easier by Bright
and Gilbert, Landlord and Tenant Law: The Nattm of Tenancies (Oxford: Oxford University
Press, 1995).
460 PETER BIRKS

by the law for regulating the behaviour of neighbours towards each other,
especially through the torts of nuisance and trespass to land. Fourthly, there
is the structuring of mega-wealth, the mission of the old Lincoln’s Inn con­
veyancers. That is breaking away, not specifically land law any longer but
wealth management. Its principal vehicle is the trust, often enough off­
shore, in which land becomes just one kind of asset in a rolling fund. Fifthly
and last of all, there is the unit at the very centre of the target. When lawyers
speak of land law, it is usually to this core that they refer.
Every business needs premises, every factory needs a site. For most of us
as private individuals our home is the centre of our Hves. Functionally, this
core of land law has the task of providing the structure within which people
and businesses can safely acquire and exploit land for daily use, to live and
to work. To discharge that function, it has to have its own conceptual appa­
ratus. The proper content of this fifth unit thus becomes the nature,
creation, and protection of interests in land. Those interests and their impH-
cations are the conceptual apparatus of our land law.
The word ‘interests’ is sHghtly evasive. The law recognizes different
kinds of rights, among them property rights.^ By ‘interest’ we mean ‘prop­
erty right’. The category of all property rights (or, in other words and more
simply, ‘the law of property’) is a legal-conceptual category. It differs from,
say, the law of dogs in that its subject is a legal concept, the concept of a
proprietary right. The core of land law is the subset formed when the con­
ceptual category of ‘property right’ is confined to one context: the law
relating to property rights in land. To focus on that core is neither to down­
grade the importance of the units in the next circles nor to forget that in
real Hfe all the units which we have identified, and others, cohere together.
Land law in this core sense is, therefore, a contextual subset of a legal-
conceptual category. There is a recurrent problem. Property rights in land
have roots a millennium deep in a pre-commercial society in which land
and wealth were virtually synonymous. The structuring of landed wealth,
and the power that went with it, was then land law’s principal mission. The
subject of land law—the law, that is, of the recognized proprietary interests
in land—is therefore intellectually entangled in a history not always obvi­
ously relevant to its contemporary function.

THE FIVE KEYS

The five keys have one-word tags: Time, Space, Reality, Duality, and
Formality. There is a pervasive theme which has its own label: Facilitation.
This might be said to be the string on which the five keys hang. There is
For a discussion o f‘reality’, see text at n. 26.
 FIVE KEYS TO LAND LAW 461

also a complication. All five keys have to be turned together. Exposition is

easiest when each point has a natural priority. Here there is no natural pri­
ority, and no expository device to achieve what King Arthur intended
when he seated his knights at a round table.
Facilitation
Some areas of law are primarily concerned to inhibit undesirable conduct.
This is most obviously true of the law relating to wrongs, whether criminal or
civil. Even there, behind the inhibition, lies a facilitative goal—namely, to
allow civilized life to be conducted free from the fear of harm. The wrong of
nuisance facilitates the enjoyment of land, but primarily by inhibiting unrea­
sonable interference. By contrast, other areas are primarily facilitative. The
law of contract, for example, helps people do something which by and large
they want to be able to do—namely, to make reliable agreements.
Like contract, land law is primarily facilitative. Each of the five keys,
though some more obviously than others, can be seen as facilitating the
achievement of goals which people routinely want to achieve. It helps very
much to keep in mind what landowners and would-be landowners are
likely to want. What sort of property rights will they want to grant or to
acquire? However, the theme of facilitation can never free itself from the
counter-theme of inhibition. Blackbirds have strong territorial ambitions.
They fight like hell for territory. For the weaker, death is the only alterna­
tive to flight. Any ageing blackbird wiU tell you that the main threat to his
territoriality is simply the territoriality of others. Human territoriality
encounters all sorts of conflicts, between one generation and another,
between one neighbour and another, and between individuals and the
community as a whole. Such conflicts create a tension between facilitation
and inhibition. And in that tension most of the difficulties of land law arise.
A landowner may be willing to pay a large sum for a permanent propri­
etary right to prevent building on the neighbouring land. The first instinct
is to facilitate, but there are arguments the other way. Should he be able to
sterilize the economic use of that land? In fact the law does allow such a
right to be created. Restrictive covenants, as property rights, are a relatively
new invention.^ But there are millions of restrictive covenants, against
building or, say, against erecting more than one house, or against using
premises for the purposes of trade or commerce. But this kind of thing has
to be kept under control. Suppose that the landowner is very rich and wants
to buy such a right over one field after another, to the foothills of a distant
mountain. He wants to preserve the view from his house, for ever. The law
draws a line. Sterilization of that kind has to be prevented. The law has to
^ Their root lies in the attempt to keep Leicester Square ‘in an open state, uncovered with
any buildings, in neat and ornamental order’ {Tulk v. Moxhay (1848) 2 Ph. 774; 41 ER 1143).
 462 PETER BIRKS

facilitate, but it also has to inhibit, in order to achieve a reconciliation

between conflicting interests. And that is why the law of restrictive
covenants is intricate.

TIME
Although bits do occasionally wash away or sHp into the sea, land is in gen­
eral permanent. For most human purposes we have to regard it as lasting for
ever. There is a powerful urge to deal in slices of time. It is not confined to
land. The institution of the trust makes it relatively easy to turn all kinds of
wealth into an enduring fund, and that facility in turn excites and to a
degree gratifies the urge to deal in slices of time. However, it is the natural
permanence of land which makes slices of time a dominant feature of land
law.
Two Motivations
W hy do people want to deal in slices of time? It is an urge which has been
fed from at least two sources. One is essentially commercial, the other not.
The commercial motivation
i Commercial motivation means, in plain words, the desire to get money out
of land. There are aU sorts of ways of getting money out of land. For
instance, one can farm the land and seU the produce. The most extreme
method of all is to sell one’s whole interest in the land. That means selling
the whole slice of time over which one has control. The largest interest in
land— the greatest sHce of time— ^is ‘for ever’. In everyday conversation I
tend to say ‘my house’ or ‘the house I own’. In aU probability, what I actu­
ally have in my house is ‘for ever’, a slice of time measured by the length of
time the land will last. There is no harm in caUing that ownership. That is
what in effect it is. But in the technical language of the law that huge sHce
of time measured by the life of the land itself is called a fee simple.^ The fee
simple in the land on which my house stands is worth about ;£200,000. I
could mortgage it or sell it. But there is another possibility. I could keep ‘for
ever’ and deal instead in a shorter slice of time.
The commercial motivation for dealing in lesser slices of time is to real­
ize in money some of the value of the land without giving up one’s whole
\ interest. The lease is the proprietary interest which most obviously facili­
tates this. I might let my land for a fixed number of years, say for ten years.
If I go for that option, I have further choices. I could take a single capital
sum, or I might prefer a flow of income in the form of an annual rent, or a
^ The term is cautiously explored in connection with the history of this interest at n. II.
 FIVE KEYS TO LAND LAW 463

mixture of both, say ^20,000 now and /¡5,000 per annum by way of rent.
Whichever I choose, the fee simple remains mine, though occluded by the
lease. When the ten years have passed, the shadow occluding my interest
will vanish, and my fee simple will once again be unencumbered. The
reversion has value even during the ten years during which I am out o f pos­
session. If I choose to, I can sell it even while the ten years are running.
The family motivation
The primary non-commercial motivation for dealing in slices of time is
concern for one’s family. In obsolescent aristocratic terms this might be
restated as a dynastic motivation. The idea of benefiting the different gen­
erations of one’s family is perfecdy natural. The desire to keep land perma­
nently in the family or part of the family has been a routine temptation. The
link between the ownership of land and social hierarchy having been largely
broken, the dynastic urge to keep a specific piece of land locked into one
family has weakened. The law now does everything it can to ensure that
land is freely alienable and that any future interests granted to descendants
are detached from the land and transferred to the fund represented by the
money for which it is sold. Since the great reforms of 1925, anyone want­
ing to deal in slices of time other than leases, and less than for ever, has had
to do it in equity, behind the curtain of a trust.^ In other words, in front of
the curtain there are now only two slices of time known to the law, ‘for
ever’ and the lease for whatever time is agreed. All other slices of time once
recognized directly by the common law have been abolished. Despite these
changes, a proper understanding of land law cannot be achieved without
knowing something of how the battle over time was fought.
The Evolution of the Doctrine of Estates
In ordinary language the sentence ‘M r Smith has an estate in Suffolk’ sug­
gests a goodish patch of Constable landscape of which M r Smith is the
owner. But in land law an estate is a slice of time. The doctrine of estates is
the learning which tells you what sHces of time the law allows or has
allowed a landowner to deal in. A ‘Hfe estate’ was a recognized estate at
common law.
The life estate and the estate for another’s life
Suppose that my great-grandfather, AHB, had a life estate in a farm in
Suffolk. That means, in effect, that he was entitled to the benefits associated
with ownership, but only for his hfe. Suppose he then sold and conveyed
his estate to his brother, BHB, for j^2,000. BHB would have been well
Law of Property Act 1925, s. 1.
 464 PETER BIRKS

advised to insure AHB’s life, for nemo dat quod non hahet (nobody gives what
he does not have). AHB could not transfer more than he had, and all that
he had was a slice of time measured by his own Hfe. By AHB’s conveyance,
BHB therefore acquired in the land a slice of time measured by AHB’s life.
The language of the common law was originally French. An estate mea­
sured by another person’s hfe was always known as an estate pur autre vie
(pronounced as though it were EngHsh).
Carried to extremes, the dynastic temptation might have led to an infi­
nite series of Hfe estates: to A, my eldest son, for Hfe, then to ^ ’s eldest son
for Hfe, then to the eldest son of A's eldest son, and so on. The effect would
have been to give each successive son only the slice of time measured by
the thread of his Hfe. He could deal in that sHce, but no buyer would ever
get, or pay for, more than an estate pur autre vie. But this is a clear case for
inhibition. Some of the bad effects of such an arrangement are instantly
appreciable. Nobody would ever have a marketable sHce of time. No
money could be raised to invest in the land. It is in nobody’s interest to pro­
duce an impoverished class of landowners. If such arrangements prevailed,
the value of the land would be locked up and steriHzed.
An enormous amount of legal energy has gone into restraining the urge
to tie up land for long periods and, on the other side, into pushing against
those restraints. The most obvious outcome of that particular battle
between feciiitation and inhibition was ultimately the rule against perpem-
ities, the effect of which is to destroy aU future interests which do not vest
within a certain time.^° However, there were much earHer manifestations
of the same policy against tying land up for the future. They were respon­
sible for the evolution of the principal estates known to the common law.
The fee simple
The history of the fee simple^ ^ is bound up with the interpretation of grants
‘to A and his heirs’. Under such a grant it might be thought that A would
The old rule fiercely destroyed any future interest which could conceivably vest
beyond a period defined by lives in being at the date of the gift plus twenty-one years. A
modem liberalization kills off only those which actually do fail to vest within either that
period or, if the grantor elects for the clarity of a fixed period, within eighty years
(Perpetuities and Accumulation Act 1964).
The word ‘simple’ is straightforward enough in this. It signifies something like
‘unqualified’ or ‘nothing more nor less’: nothing more nor less than the fee. But ‘fee’ is dif­
ficult. It is the same word as the ‘feu’ in Teudal’ and as ‘fief. You will also encounter ‘enfe-
offinent’ (a formal conveyance) and ‘feoffee’ (a person enfeoffed). The medieval Latin is
‘feodum’. The underlying meaning of all these is elusive. It may not be far firom the lay sense
o f‘property’ or ‘belongings’. The modem German for ‘catde’ is ‘Vieh’ and it is supposed
that an old Frankish predecessor was ‘fehu-od’ (cattle-property). The link between ‘catde’
and ‘property’ and ‘money’ is present in classical Latin in the word ‘pecunia’. Even the ele­
ment of reward may not be absent. In the feudal system the fee simple was the belonging
 FIVE KEYS TO LAND LAW 465

not be able to defeat the interest of his heir, his heir’s heir, and so on. Would
not A be able to sell only the shce of time measured by his own Hfe? The
early common law took the contrary view. It interpreted the words ‘and his
heirs’ as merely fixing the length of the slice of time vested in A. That is to
say, A took, and could dispose of, an estate in the land measured by the sur­
vival on earth of his heirs. No heir took anything by the grant. Whether A's
immediate heir ever got anything therefore depended entirely on whether
A chose to let him have it. A grant ‘to A and his heirs’ was thus construed
as giving A the ‘for-ever’ interest called the fee simple. In the technical lan­
guage of the common law the words ‘and his heirs’ became words of limi­
tation, not words of purchase. That is, they were words which defined the
length of the interest at .^’s disposal.
Suppose that A had received a grant of land ‘to A and his heirs’. If a life
tenant could sell only an estate measured by his own life and thus confer an
estate pur autre viCy logic would seem to suggest that A could sell only the slice
of time measured by the survival on this earth of his own heirs. That logic
was not applied. A would sell to ‘B and his heirs’, and B would take the slice
of time measured by the survival of his own, B’s, heirs. Formally, that appears
to break the rule nemo dat quod non habet. In substance it does not, simply
because ‘and his heirs’ was, so to speak, double Dutch for ‘for ever’.
This transition may be explained by the fact that, though it can at any
one time be impossible to find the heir to a given person, yet, so long as
there is no restriction to lineal descendants so that collaterals can also be
taken into account, the difficulty of finding an heir is no proof that there is
actually no heir at all. Be that as it may be, the estate conferred on ^4 by a
grant ‘to A and his heirs’ was construed as nothing other than the slice of
time measured by the survival of the land itself or, in other words, for ever.
If^ sold and conveyed the land ‘to B and his heirs’, the law refused to say
that B took only that slice of time measured by the survival of ^ ’s heirs.
There would have been no point. The reality was that A had ‘for ever’ in
the land, and that is what he conveyed to B.
The emergence of the fee simple as the ‘for-ever’ interest thus demon­
strates a double act of interpretation in favour of hall and free alienability.
First, the words ‘and his heirs’ were understood as not creating a string of
life estates. Secondly, a conveyance by one who had received a grant in
those terms did not follow the logic of the estate pur autre vie: the recipient
did not obtain an estate defined by the survival of another person’s heirs.
which you got in return for the services undertaken to your lord. But it is necessary to tread
cautiously. We know what a fee simple is we do not know what precise shade of meanii^
‘fee’ originally had. Onions is agnostic (Onions, The Oxford Dictionary of English Etymology
(Oxford: Oxford University Press, 1985), s.v. ‘fee’).
The rule in SfieHey^'s Case (1579) 1 Co. Rep. 88b, 76 ER 199, which has earlier roots,
is part of this same story; ‘When by the same instrument in which a hfe estate is given, the
468 PETER BIRKS

Upper air.^^ Subject to such controls as the law imposes in the interests of
the community as a whole or the neighbours in particular, the owner of the
fee simple is free to use or not to use the space. Those who have lesser slices
of time are in a similar position, except that they have to accept restrictions
inherent in their shorter interests.
Flying Freeholds
Suppose the owner of the fee simple wants to split the space horizontally.
Let it be that he wants to sell the airspace between the altitudes of 50 and
60 metres, perhaps because that sHce of air is occupied by the top floors of
a skyscraper. There is no theoretical objection. But it has proved impossi­
ble in English law to cope with the secondary problems of interdepen­
dence. Scots law manages it well enough, probably because, as Dr Jolmson
already observed, tall buildings have long been a feature of the Scottish
urban landscape and flat-dwelling has been correspondingly common even
among the well off. Interdependence supposes the need for a regime of
positive and negative duties regulating the relations between vertical neigh­
bours. English law can establish such a regime in relation to leasehold, but
seemingly not in relation to freehold. However, there is a demand for fly­
ing freeholds, and proposals to facilitate the achievement o f that goal lie on
the table.
Single Strands of the Economic Potential
Within the defined space the law has to meet a demand for another kind of
splitting, not literally of space, but of individual strands of the economic
potential inherent in the space. Property rights consisting in fractions of
potential enjoyment are grouped by the law as easements, restrictive
covenants, or profits. But it is not necessary at this level to enter into those
distinctions. It is sufficient to know that a landowner can get money out of
the land, not only by selling fractions of time, but by deahng in strands of
enjoyment. A neighbour may be wiUing to pay for a right of way over the
land. Another may be interested in creating a binding obligation never to
build on or trade from the land. An angHng club may be interested in the
right to take fish. A road-building company may be willing to pay a
high price to extract the gravel from a gravel bed or to take stone from a
quarry.
Pickering v. Rudd (1815) 4 Camp. 219; Lord Bernstein of Leigh u. Skyviews and General
Ltd. [1978] QB 479. Quite where the tube is cut is difficult to say, but above the level of
economic exploitation. The swinging jib of a giant crane can trespass {Anchor Brewhouse v.
Berkley House (1987) BLR 82).
Law Commission, Commonhold: Freehold Flats and Freehold Oumership of Other
Interdependent Buildings, Report of a Working Group (the Aldridge Committee) Cm. 179
(London: HSMO, 1987).
 FIVE KEYS TO LAND LAW 469

A case in 1978, Re Brocklehurst,^'^ contains a wonderflil example. The

eccentric owner of some 4,000 acres struck up a fiiendship in his late eight­
ies with the proprietor of a local garage. After his death his relatives dis­
covered to their horror a transaction which they sought in vain to have set
aside. Lord Denning MR described it Hke this:
It was a transaction by which he severed the shooting rights from the estate and
gave them to a garage proprietor for 99 years. He gave him the whole of the shoot­
ing rights. Not only over the Roaches and the Giin Moor. But also over the park
land and frrms, and even the gardens and lawns of the Hall, right up to the win­
dows. He gave them to the garage proprietor with full right to assign or sublet those
rights at whatever profit he could make . . . It was a disastrous transaction for any­
one who was to inherit the estate . . . The value would be reduced by ;£90,000. It
might make the house virtually unsaleable.^®
The relatives* failure vividly illustrates the law’s willingness to facilitate deal­
ing in particular strands of the potential of the space. M r Brocklehurst had
validly transferred a ninety-nine-year right to shoot the game on the land.
The next section wrill investigate more closely two modes in which this
kind of thing can be done. It can be done by creating personal or propri­
etary rights. Mr Brocklehurst created a proprietary right, and it is with rights
of that kind that land law is peculiarly concerned.
Anticipating the next section, it is essential to underline one crucial
point. As those who inherited from M r Brocklehurst knew, property rights
bind the land itself Because of this characteristic, they have the potential to
sterilize the wealth which inheres in that land. They are the product of an
exploitation of that wealth, but, once in being, they to one degree or
another sterilize other uses of the land. This means that the law has to
inhibit a free for all in the creation of such proprietary interests. In one lead­
ing case the plaintiff claimed to have an exclusive right to put pleasure boats
on a stretch of canal. The defendant was a rival in the same business. It was
held that that right could not exist as a proprietary rig h t.P o llo c k CB
insisted that new forms of proprietary right ‘cannot be created at the will
and pleasure of the owner of property’, and Martin B thought that to con­
cede the plaintiff’s demand ‘would lead to the creation of an infinite vari­
ety of interests in land’.^^
The necessary control is usually a matter, not of identifying particular
content, but of laying down more abstract conditions. An unusually simple
example is the general principle (to which occasional exceptions have been
allowed) that none of these fractional rights can compel the doing of posi­
tive acts: you cannot have a proprietary right compelhng neighbouring land
[1978] Ch. 14. [1978] Ch. 14, 26.
m i V. Tupper (1863) 1 H & C 121, 159 ER 51.
20 1 H & C 121, 127, 128; 159 ER 51, 53.
 470 PETER BIRKS

to see to your ploughing, dig your ditches, and so on. There can be an ease­
ment to run drains through a neighbours’ land or lead water over that land,
but it cannot impose a duty on the neighbour to maintain the drains or
channels.^^ Much of the difficulty of this area derives from the elusiveness
of the requirements to which these fractional proprietary rights have to
conform.

REALITY
In the technical language of the law ‘real’ never denotes the opposite of ‘illu­
sory’ or ‘frke’. It is usually an anglicization of the adjective from res, which is
Latin for ‘thing,’ Hence, ‘real’ always indicates that something has some
quality of or relation to a thing. If a creditor, about to lend money, asks for
real security, he means that he wants to be able to turn against a thing for the
purpose of obtaining what is due to him. That contrasts with personal secu­
rity. A guarantee will allow the creditor an extra recourse, against the person
of guarantor. We could talk about ‘thing-security’ and ‘person-security’. We
do not. We distinguish instead between real and personal security.
A lawyer cannot be frightened of technical meanings. It helps, however,
if each word pressed into technical service has just one technical meaning.
Here there is more than one. The law uses ‘real’ to mean ‘in some signifi­
cant way thing-related’, but the nature of the relation is not always the
same. Very importantly, there is a difference between the ‘reahty’ which is
indicated in the contrast between real and personal property and the ‘real­
ity’ indicated in the contrast between real and personal rights. Though the
distinction between real and personal property is ancient and venerable, it
is nowadays far less important than the distinction between real and per­
sonal rights.
Realty and Personalty
There is an almost perfect match between the category of real property and
land. If a lay person hears ‘real property’, or ‘real estate’, or ‘realty’, what
win come to mind will be an image of land. For most lawyers the effect will
be the same. Some la'wyers may just manage to remind themselves that they
Duke of Westminster v. Guild [1985] QB 688, 702-3. The owner of such an easement
may enter to maintain the drains and channels himself.
Essentia] as a foundation for thinking about this is the comparative and economic study
by Bernard Rudden, showing that it is difficult to enlist the support of law and economics
for a strict numerus clausus (finite number) of real rights in land, whence either the econo­
mists’ reasoning must be deficient or the lawyers* conviction that a numerus dausus is essen­
tial is hysterical (Rudden, ‘Economic Theory versus Property Law: The Numerus Clausus
Problem’ in Eekelaar and Bell, (eds.), Oxford Essays inJurisprudence (3rd ser., Oxford: Oxford
University Press, 1987), 239-63).
 FIVE KEYS TO LAND LAW 471

should be thinking more abstractly, not of the land itself, but of interests in
land. ‘Personal property’ or ‘personalty’ similarly evoke cars, cows, televi­
sions, crockery, pictures, money, and a host of other moveable things. In
hct the correlation is not quite perfect. A lease of land, however long, is
technically personalty, and some moveable things are heirlooms and fall
within the category 6f realty. The right to caU a parson to the freehold in a
church, called an advowson, was always realty.
In what sense is realty ‘thing-related’ and in what sense are personal
things like cars not ‘thing-related? Our law settled on a remedial scheme
which in general refused specific recovery and preferred instead what
the Romans called condemnatio pecuniaria (condemnation in money).
Condemnation in money means that, whatever the nature of the claim, the
successftil plaintiff ends up with a money judgment. Even if the plaintifFis
in essence saying ‘That cow, Buttercup, which you have, is mine!’, the sys­
tem which takes this remedial option gives him no right actually to get the
cow back. A judgment in money can be called ‘personal’, because it gives
the victorious plaintiff no right in or to any particular thing but merely a
right that a person, the defeated defendant, pay the sum in question, a right
backed by the law’s machinery for executing judgments. There are good
reasons in favour of this preference for personal remedies in money, and
classical Roman law made no exceptions.^^
English law did make some exceptions. In some actions you could
recover the thing itself. Those actions came to be called ‘real actions’, ‘real’
meaning ‘thing-related’ in the simple sense that the person claiming would
recover the very thing claimed. The subject matter of ‘real actions’ then
became ‘real property’ or ‘realty’, the especial thing-relatedness of such
assets being their specific recoverabihty; if it came to htigation, you would
get back the thing itself.^'* It is almost a perfect truth that the category of
specific recoverability extended no ' further-rhan land. Hence the near­
perfect correlation between realty and land.

Exceptions were made in the post-classical period. It is important to underline, antici­

pating the next meaning o f‘real’, that the Roman vindicatio was an unequivocal assertion of
a proprietary right: ‘That thing is mine!’ Yet it gave rise to a personal money judgment. The
judge had a discretion to allow (not to order) specific surrender of the res but he could con­
demn only for its value. This perfectly illustrates that specific recoverability is not a neces­
sary quality of a proprietary claim. See further Lawson (ed.), Buckland and McNair*s Roman
Law and Common Law (2nd edn., Oxford; Oxford University Press, 1952), 412-13, also
76-7. See also Maitland’s comment quoted in the next note.
Maitland, The Forms ofAäion at Common Law, ed. Chaytor and Whittaker (Cambridge:
Cambridge University Press, 1965 repr. from 1909), 74-5. Notice especially, ‘This remark
[ofBracton, at fo. 102b] which made the reality or personality of the action depend not on
the nature of the right asserted by the plaintiff but on the result of the judgment, has had
results which as I think are much to be regretted’ (p. 74).
 472 PETER BIRKS

Why was the lease of land left out? In the first generation of common law
actions there was no action for specifically realizing that kind of slice of time
in land. In other words, there was no real action for a leaseholder. It was
not until the sixteenth century that the leaseholder was finally equipped
with what was in effect a real action.^^ But by that time the categories had
set. Legal language might then have coined the contradictory-sounding
phrase 'real personalty' to express the nature of the lease, meaning person­
alty which could be specifically recovered. It did not. It did the next best
thing. It took to caUing leases ‘chattels real’. ‘Chattel’ is a word for any item
of moveable property,and, by extension, for any item of personalty, and
‘real’ means ‘thing-related’ in this sense o f ‘specifically recoverable.’
Real Rights and Personal Rights
We move now to the kind of ‘reahty’ or ‘thing-relatedness’ which matters
in the modem law. The key proposition is that land law is, centrally, the law
of real rights in land. The slice of time which we call a lease, or, less com­
monly, a ‘term of years’, is for historical reasons personalty or personal prop­
erty, but it is indisputably a real right in land and as such central to land law.
A fee simple is similarly a real right in land, the greatest of all.
People’s wealth—^their ‘property’ in the widest sense of that slippery
word—consists in rights of two kinds, real rights and personal rights. It is
important to say at once that there are different ways of expressing this dis­
tinction. ‘Real’ and ‘personal’ here anglicize the Latin labels in rem and in
personam. Many people prefer to use the Latin labels. The Latin tells us that
a right in rem is a right in or against a thing, while a right in personam is a
right in or against a person.
One can change to different language. A right in personam can be called
an obligation. A right in personam and an obligation are one and the same
thing, but looked at from different ends. I have an overdraft. I owe my bank
£1,000. The bank has a right in personam, the person here being me. I have
an obligation to pay. The relationship can be named from either end, and
in practice we usually name it from the liability end. Hence we very fre­
quently speak, not of the law of personal rights or of rights in personam, but
of obligations. As for rights in rem, if we drop both the Latin and the lati-
nate English, they usually become ‘property rights’ or ‘proprietary rights’.
The roots of this development He in the fifteenth century, but it appears to have been
secured in 1525. A detailed account is to be found in Baker, ^Spehnan’s Reports’, voL 2
(1977) 94 Selden Society 180.
‘Chattel’ is related to ‘cattle’ and both are derived, as is ‘capital’, from the Latin ‘caput'
which means ‘head’ and, by transference, things important or essential. The exact relation
between ‘cattle’ and ‘chattel’ is probably not the most obvious—^namely, that cattle were
centrally important items of moveable property (Onions (ed.), The Oxford Dictionary of
English Etymology, s.v, ‘chattel’).
 FIVE KEYS TO LAND LAW 473

We sometimes use ‘property’ loosely to mean ‘wealth’. In that loose sense

‘property’ wobbles . Sometimes ‘my property’ evokes and is intended to
evoke specific things, such as cars and clothes and cottages. Sometimes, and
rather more technically, ‘my property’ denotes mere rights vested in me,
such as a fee simple, a lease, ownership, or the obligations of my debtors.
Whichever the focus, the loose notion of property as wealth is too broad to
be useful in analysis. To think clearly the law has to draw a bright hne
between two classes of right, both of which can fall vrithin the loose notion
of wealth.
The bright line distinguishes between property and obligations. When
that line is drawn, property clearly has a narrower and much more techni­
cal sense. Within wealth, taken as including all assets, the law of obUgations
is the law of rights in personam and the law of property is the law of rights
in rem. Hence a ‘property right’ or ‘proprietary right’ is a real right, is a right
rem. The law of property is the law of all known real rights, and land law is
the law of real rights in land.
What is the difference? The practical difference bears on this question.
Against whom can the right be demanded? ‘DemandabiLity’ is intelligible
but not really English. But another word for ‘to demand’ is ‘to exact’,
which gives us ‘exigible’ and ‘exigibihty’, A right in rem is a right the exigi-
bility of which is defined by the location of a thing. The exigibility of a
right in personam is defined by the location of the person. Where I have a
right in personam the notional chain in my hand is tied round that person’s
neck. Where I have a right in rem, the notional chain in my hand is tied
around a thing. Between me and the car which I own there is such a
chain.^^
Most of the landowner’s ambitions in respect of space and time can be
met to some extent by the law of contract. It is important to see that this is
true. The facility offered by the law of contract is indeed often used. But it
is equally important to see why the contractual answer does not go far to
satisfying the fundamental needs. It is an unsatisfactory solution because
contracts by nature create only personal rights. Most of the landowner’s
legitimate desires can be achieved only if the law allows them to be given
effect in rem—that is, as proprietary rights. We can show this by two exam­
ples, one from the exploitation of space, one from the exploitation of time.
We must notice Hohfeld’s brilliant but flawed attempt to eliminate the notion of a
right in rem. He thought they were illusions, simply ways of representing rights in personam
available against a multitude of persons (Hohfeld, Fundamental Legal Conceptions, ed. Cook
(New Haven, Conn.: Yale University Press, 1964), 68-94 (reprinting an article originally
published in (1917) 26 Yale LJ 710)). Harris shows that the Hohfeldian redescription is
worse than cumbersome (Harris, Property and Justice (Oxford: Oxford University Press,
1996), 11^38. See also Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 43
UCLA Law Rev. 711 at 726-31, some parts of which are now incorporated in Penner, The
Idea of Property in Law (Oxford: Oxford University Press, 1997), ch. 4—6.
 474 PETER BIRKS

Let us suppose that I am in a position to offer my neighbour access to his

land along the edge of my wood. If it could only be done by a contract, giv­
ing a personal right, I could not get much for it. My neighbour would
know that I might sell my land a month later and he would be left at best
with a right against me. The new owner could tell him my contractual
obligations were nothing to do with anyone but me. For a purely personal
right against me obliging me to let him use my land for access to his, my
neighbour might indeed pay a small sum, perhaps ;¿100 per annum. He
would not pay the X 10,000 which I am interested in getting. People do
make such purely contractual arrangements, but they do not meet the real
need. The law recognizes the need for a right of way in rem. An easement
of way is a proprietary interest. For the grant of an easement of way I may
well be able to get the ^10,000. My land will, of course, later sell for less.
" My neighbour will have a right in the land itself» exigible against all com­
ers and therefore, and especially, against my successors in tide. The invisi­
ble chain in his hand will be attached at the other end to the land itself.
And, in fact, the law goes fuaher. It puts the benefit of the easement, not
in his hand, but, so to speak, in the hand of his land. The eflfect is that the
easement will run with the land at both ends of the invisible chain by which
we are representing the right. When he sells on to someone else, the new
owner of his land will get the easement by virtue of his acquisition of the
land. And when I sell on, the ‘real’ quality o f the right which I have con­
ceded will mean that my buyer will take subject to the burden of the ease­
ment. It is important to emphasize that the real quality of a right has no
logical implications for the behaviour of the benefit of the right. Even many
personal rights can be alienated and often are. If you owe me ¿^0 0 , 1 can
sell and assign my right in personam to someone else, perhaps a professional
debt collector. And there is nothing contradictory in the notion of an
inalienable right in rem?^ It is no part of the logic of real rights that they
must be alienable, much less run, at the benefit end, with the land which
benefits. That is something extra, which some real rights have and some do
not.
Time can also be exploited through contract. People do make contracts
to allow other people to use their land for this or that purpose for a given
time. Just as Hertz and Avis exploit the temporal dimension of ownership
of cars through the contract of hire, so it is possible to make what are
essentially contracts of hire of land. In the early common law, the lease was
no different from a contract of hire. But the lease was later given effect in

2® In Roman law the usufruct (functionally equivalent to the life estate in English law)
was inalienable, as also its more restricted cousins, but all were unequivocally rights in rem
(Nicholas, An Introduction to Roman Law (3rd edn., Oxford: Oxford University Press, 1962),
144-5).
 FIVE KEYS TO LAND LAW 475

If I grant you a lease of my land for twenty-one years and then sell and
convey my fee simple, the purchaser from me wiU take subject to your lease.
The reason is that your slice of time is a proprietary interest, an interest in rem,
exigible against the land itself and hence against my successors in tide,
A pressure point
Because proprietary rights are invisible threats to strangers, and also because
they have the potential to sterilize the economic value of land, the law
keeps them, as we have seen, under strict control.^*^ They are recognized
under conditions as to content and mode of creation. There is no free for
aU. However, there is always pressure on the closed list. Not infrequently,
people are surprised and disappointed to find that they are exposed to the
weakness of purely personal rights. Sometimes they have been manceuvred
into that position by a combination of strong market forces and legal inge­
nuity working for the other side. There is a strong market in accommoda­
tion, especially in student accommodation. A great deal of ingenuity has
gone into the business of renting out houses for accommodation without
actually granting a lease, usually by calling it a mere licence.
The same sort of thing can happen without any exercise of ingenuity.
Suppose an employer makes an arrangement with a widow of an employee
that she can stay on in a cottage for as long she wants to. The employer later
sells the fee simple. The new owner insists on vacant possession. Either the
old lady can be shown to have a recognized right in rem or she is in terrible
trouble.^^ Some of the most difficult areas of land law are produced in this
area of pressure on the privileged list of rights in rem. The pressure is to add
to the Hst or, failing that, to obtain some limited fraction of the protection
accorded to full proprietary rights. Sometimes something on those Hnes can
be achieved by ingeniously enlisting all possible help from the combined
forces of the law of contract and the law of wrongs. The modern history of
the hcence, once merely a personal permission to use land falling short of a
lease of that land, provides the best example. In essence it reruns the old
story which turned the lease into an estate in land. Only, in the case of the
hcence, the story is still working itself out.^^
This is not quite the same story as that which is given above, text to n. 25 above. The
real action came later than the right in rem (Simpson, A History of the Land Law (2nd edn.,
Oxford: Oxford University Press, 1986; repr. 1996), 74-5).
Text from n. 18.
The example is based on Binions v. Evans [1972] Ch. 359, in which different judges
found different ways to save the widow from disaster.
Ashbum Anstalt v. Arnold [1989] Ch. 1 might be said to have drawn a line short of full
proprietary recognition, offering instead the combined assistance of contract and wrongs
(here equitable wrongs), but that is the matrix from which new proprietary interests have
grown before, not only the lease but also restrictive covenants, in Tulk v. Moxhay (1848) 2
Ph. 774, 41 ER 1143, on which see text to n. 7.
 476 PETER BIRKS

D U A LITY

There is duality where a proposition is true in one conceptual dimension

but is falsified or heavily modified in another. Our land law is shot through
by instances. There is one of ubiquitous and fundamental importance—
namely, the duality between law and equity. There is another, now of
fading significance, which emanates fiom tenure. A third consists in the dif­
ference between beneficial interests and security interests. A fourth, perhaps
inessential at the point of access to the subject, turns on the relativity of title.
Law and Equity
Proprietary rights in land can be legal or equitable. The mind can cope with
the proposition that English law is different firom Scots law. It is more dif­
ficult to accept the existence within English law itself of two legal systems
with different answers to many questions. Yet for centuries that was the
position. The courts of common law administered common law, and the
court of chancery administered its own law, called equity. And on many
issues the court of chancery took a position different from that of the courts
of common law. The institutional duality was abolished more than a cen­
tury ago. Modem courts administer both law and equity, and the conflicts’
rule laid down by statute is that, where law and equity differ, equity pre-
vails.^^ The conceptual duality continues. In some areas it has weakened
and will weaken further.^"^ But, wherever the law of tmsts has a role to play,
the duality is here to stay. Where there is a tmst, the law says A is owner
but equity disagrees and prefers B. Or we might put it the other way about:
wherever equity thinks B should be owner, even though the common law
takes a different view, there is a trast. A, the owner at common law,
becomes a trustee for B.
The law of trusts was equity’s principal creation, and tmsts have become
the distinctive feature of the Anglo-American law of property. Land law
being essentially the law of property interests in land, it follows that the law
of tmsts is one of its dominant features. Wherever there is a tmst, the
proposition that someone is entitled in fee simple at law remains tme but is
in substance heavily qualified by the equitable entitlement outstanding in
another person. The legal estate is thus reduced to a bare right. Tmsts arise,
most obviously, by the decision of the owner of a legal estate to convey that
estate to tmstees on tmst, as to the interests which he specifies, for his cho­
sen beneficiaries. But express tmsts are only one kind of tmst. The law itself,
or more accurately equity, will often raise an equitable interest in someone
Supreme Court ofjudicature Act 1873, s. 25 (11).
Birks, ‘Equity in the Modem Law: An Exercise in Taxonomy’ (1996) U. Western
Australia LR 1.
 FIVE KEYS TO LAND LAW 477

Other than the owner of the legal estate. That is to say, trusts often arise by
operation of law. Sometimes this is done subject to proof o f contrary intent,
so that the prima facie trust can be displaced by evidence that no trust was
intended. In many cases, however, the trust arises irrespective of intent,
simply because facts have happened which in the eye of equity require the
legal owner to hold for someone else or partly for someone else.
It is a disputed matter whether these two kinds of non-express trust
ought to be clearly distinguished. The currendy dominant view is the tra­
ditional one which draws a bright line between what are called resulting
trusts and what are called constructive trusts.^^ In the small class of cases
where equity raises a prima facie trust subject to contrary intent, it is an
observable fact that it does so with a view to carrying back a beneficial
interest to the person from whom the legal estate was transferred, in sub­
stance cancelling out the effect of the transfer. This feature gives these trusts
their name. ‘Resulting’ has nothing to do v^th outcomes or consequences,
as might be inferred from the modem sense o f‘result’. It is a latinate word
from resalire, meaning ‘to jump back’. In these tmsts the equitable interest
jumps back to the person from whom it came. The other category of non­
express tmsts, in which intent does not even have a negative role, are called
constmctive tmsts. The name is here related to the word ‘constme’ in the
sense o f‘interpret’ or ‘infer’. Such tmsts arise merely by the interpretation
oflaw or as an inference of law.
The reasons why equity raises non-express tmsts are diverse. Nor have
they ever been systematically ordered. The uncertainty which surrounds
them makes them a fertile source of litigation. It may be right to say that
they arise in response to the creation of legitimate expectations, whether by
contract or in other ways, to wrongs, and to unjust enrichments. But it
would be unsafe not to add a fourth category of miscellaneous other events.
There is one huge body of case law in which all these themes can be
detected, often not disentangled one from another. It arises from a combi­
nation of great social changes and the tendency of house prices to inflate.
There are many versions of the story. A sketch will capture the essence of
the matter.
Two people live together. As for almost all of us, their home is the biggest
purchase of their lives, usually involving mortgage finance. But it happens,
notwithstanding the joint nature of the venture, that the legal estate is taken
in the name of only one of them. Later, perhaps after a quarrel or a death,
that person with the paper title insists that the other has or had no interest
at all. At common law that is right. Has equity raised an interest under a
resulting or constmctive tmst? If not, the partner with the legal estate will
mn off with everything. Many have been sacrificed on the altar of this kind
Westdeutsche Landesbank Girozentrale v. Islington LBC [1996] AC 669, especially the
speech of Lord Browne-Wilkinson.
 478 PETER BIRKS

of litigation. Even if we do not know quite how it should best be explained,

we do now know that on most versions of the story equity does indeed raise
a trust, compelling the partner with the legal estate to acknowledge the
other’s beneficial interest.^^
In general law is no less flexible than equity but in the land law this is not
so, partly because of the special demands of legal certainty in this area and
partly because common law has in many respects been set hard by statute.
The example just given serves to illustrate equity’s flexibility. Through its
use of non-express trusts it can escape formal requirements for the creation
of proprietary interests. Common law interests in land have to be conveyed
formally. The spouses and defado spouses who benefit from the particular
intervention of equity just described have neither deed nor registration nor
even writing to rely on. We will return to this theme when we deal with
formality in the next section. Equity was always inclined against formality.
Another aspect of equity’s flexibility relates to the content of the real
rights which it is willing to recognize. In the days when landownen were
still seriously interested in reaching forwards to create future interests in
land, a principal attraction of creating an express trust and doing the job in
equity was that common law could offer only a limited number of building
blocks—-namely, the particular estates which it then recognized. They
could not be modified and there could be no gaps between them. Equitable
estates could be made to shift and spring. That is, in reaching into the future
the settlor could stipulate that an equitable estate should terminate prema­
turely in a certain event and shift to another person, or he could deliber­
ately create a gap in the succession of interests, so that the next in line would
spring up after an interval. The notion of a short list of immutable slices of
time is alien to equity. That remains true today, and all the more obviously
in that common law estates have been cut down to two. However, when
it comes to fractional rights to single strands of enjoyment, it is necessary to
be more cautious. The control of such rights, to curb sterilization, would
be utterly subverted if equity had a free hand. Hence, in relation to such
rights equity’s creativity must be regarded as spent, save as to the manner in
which they can be created. In that department, equity’s traditional prefer­
ence for substance over form stiH has some room for manoeuvre.
Among many such cases; Ei^es v. Eues [1975] 1 WLR 1338; Pascoe v. Turner [1979] 1
WLR 431; Grant v. Edwards [1986] Ch. 638; Uoyds Bank pic v. Rosset [1991] AC 107. A
warning against making universal assumptions: Bums v. Bums [1984] Ch. 317. For a notable
attempt to sort the ideas out, see Gardner, ‘Rethinking Family Property’ (1993) 109 LQR
263.
For a brilliant but difficult account of this, see Moriarty, ‘Licences and Land Law; Legal
Principles and Public Policies’ (1984) 100 LQR 376, noting esp. 397. It will be seen that the
matter is complicated by the fact that, under closer examination, the line between simple
division of enjoyment through time and fractional interests tends to dissolve.
 FIVE KEYS TO LAND LAW 479

Equity’s flexibility is bought at a certain cost. Legal certainty, which does

not necessarily mean morbid rigidity, is undermined by excessive fluidity.
Modem equity is in some areas excessively fluid. A different cost is that
equitable interests are more vulnerable than legal interests. If a person
acquires the legal estate, he may take free of equitable interests. This hap­
pens only where the purchaser of the legal estate gives value, is in good
faith, and has no notice of the equitable interest. The fact that the defence
of bonafide purchase has this effect of protecting certain strangers, allowing
them to take clear of the adverse equitable interests, sounds dangerous
enough to deter deliberate recourse to trusts. The danger should not be
exaggerated. The conditions of the defence were made difficult to satisfy.
Moreover, mandatory conveyancing practices were designed with the same
end in view, though they obviously cannot help to save such equitable
interests as arise without a conveyance under a non-express trust.
We have noticed that the demand for tying up land has dwindled. The
seriously wealthy, whether institutional or individual, make trusts in order
to establish a managed fund of wealth, not of land. Parallel with that change
in what is actually wanted, a long series of statutory interventions has
brought it about that the interests of the beneficiaries in trusts of land can
easily be overreached, so as to be exigible only against the money received
for the land. In practice the land may indeed be retained, especially if it
bears a house in which the principal beneficiaries want to live.^® But the
tmth is that land held on tmst can now almost always be sold and the inter­
ests of the beneficiaries transferred to the money. This is the point of con­
tact between land law and the managed fund of wealth.
As we leave the particular duality which consists in the difference
between legal and equitable rights, it is worth bringing to mind a really dif­
ficult problem: could we dispense with this conceptual duality? If, ditching
the history, we forced ourselves to think in a single conceptual dimension,
what would equitable interests then be? The answer might be that they
w^ould merely be ‘weak’ proprietary rights or ‘flexible’ proprietary rights.
However, neither their weakness nor their flexibility should be exagger­
ated. In practice the habit of duality makes it unnecessary finally to master
this intellectual challenge. It saves us from having to ask what an equitable
right really is.
Tenure
Tenure was once co-equal in importance with estates. After the Conquest
all land was vested in the king. The king made grants to tenants in chief in
return for military and other services. The tenants in chief subinfeudated to
On the instigation of the Law Commission, a limited ficility has been overtly intro­
duced by statute to allow continuing occupation by beneficiaries (Trusts of Land and
Appointment of Trustees Act 1996, esp. s. 12).
 480 PETER BIRKS

Others, and so on, creating the characteristic feudal pyramid. Tenure was the
service by which one held one’s estate. Different tenures carried different
incidents. In 1290 Edward I forbade further subinfeudation of freeholds.
Alienation thenceforth could only be by substitution.^^ An alienor had to
step out of the pyramid and put the buyer into his place.
We need not follow out the rest of the story. We are interested only in
the vestiges of tenure which survive in the modem law. There are only two
points which matter. The most obvious is that all land is still technically held
of the Crown, so that, in the tenurial dimension, it remains technically tme
that only the Crown owns the land. Every fee simple is held of the Crown
by a notional tenure involving no services at all. The other is the duality
between freehold and leasehold. To explain that, it is necessary to go back
to the days of subinfeudation and the feudal pyramid.
When one subinfeudated, adding another level to the pyramid, one
retained one’s fee simple. It remained tme that one was tenant in fee sim­
ple of the land in question. But the dimension of tenure heavily qualified
that proposition, because, below one’s own fee simple, there was another,
held by whatever services had been reserved. In essence the fee simple at
the higher level had been turned into a lordship entitled to the services now
owed by the land and, very importandy, to the incidents of that tenure,
which could be valuable. That duahty is past history in every respect except
one.
It is still tme that when a tenant in fee simple grants a lease, what we see
is technically a subinfeudation. Suppose that the lease is for ninety-nine
years. In substance that is a grant of a fraction of the slice of time (for ever)
which is the fee simple. But conceptually it is not. The tenant in fee sim­
ple, holding of the Crown, retains his fee simple. He grants a dependent
estate, the lease for ninety-nine years. In effect he becomes a lord, as in the
old days. He becomes a landlord. He still owns the fee simple. In the tenur­
ial dimension, that proposition is heavily qualified. Beneath his fee simple,
there is another estate, the ninety-nine-year lease. Perhaps he will have
reserved a ground rent. That is the service by which the lease is held. This
gives us the difference between freehold and leasehold. The fee simple is
freehold, held by a freehold tenure of the Crown. The lease is leasehold,
held of the freeholder by leasehold tenure. The tenurial duality allows the
two to coexist.
Beneficial interests and security interests
This can be dealt with very shordy, though security is an immensely impor­
tant subject. The vast majority of purchases of land are made at least in part
with borrowed money, secured on the land which is acquired or on other
Simpson, A History of the Land Law, 54-6.
 FIVE KEYS TO LAND LAW 481

land. This is common knowledge. Getting a mortgage is a crucial stage in

acquiring a house; and when one starts losing heavily in a game of
Monopoly one has to mortgage Oxford Street and Regent Street to the
bank, to keep going. The word ‘mortgage* covers a variety of differently
stmctured securities. Nowadays the commonest kind is unequivocal, for
the mortgagee acquires a right which can only be security interest, ‘a charge
by way of legal mortgage*. But it is possible for the same estate to be either
a beneficial or a security interest. Historically, the lender-mortgagee took
the fee simple. But the proposition that he was tenant in fee simple was
heavily qualified by the fact that he held that estate as a security interest, not
as a beneficial interest. His fee simple was held subject to the borrower’s
right to redeem. Since 1925 mortgagors no longer transfer the fee simple.
But a lease can still be granted by way of security. A long lease taken as secu­
rity is a security interest, not a beneficial interest. It is taken subject to the
borrower’s right to redeem. The right to redeem is strenuously protected
by equity. Hence ‘equity of redemption’ or simply ‘equity’. When house
prices collapse, buyers find themselves with ‘negative equity’. The differ­
ence between what they borrowed on the security of the house and what
they can get by seUing is a negative quantity.
Relativity o f title
The interest one holds has to be distinguished from the title by which one
holds it. Suppose you are unlucky enough to take a conveyance of a fee
simple from someone who is merely a squatter. You go into possession of
the land. Nemo dat quod non habet. The maxim suggests that you have noth­
ing. You took a conveyance from someone who had nothing to give.
However, you do have something. The reason lies in relativity of tide. The
law will protect a good title against a bad one, and a bad one against a worse
one. You have a fee simple, but you have it by a very short rope. And it
might have been yet shorter. This story started with a conveyance. It need
not have done so. You might have been the squatter. By the shortest string
of all, even a squatter has a fee simple which can in theory be assigned,
mortgaged, and so on.
Let us suppose that, somewhere in the southern hemisphere, an absent
person holds the fee simple in this land by a very good tide. She holds it by
a very long rope. Before she went away she was in possession of the land,
and in a box in her lawyer’s office she has the deeds which trace its descent
through deaths, gifts, and sales over a couple of hundred years. She has a fee
simple by a good tide. You have one by a lousy tide. If she finds out what
has happened, she can blow you away. But she is in danger. There is a time
within which she must put things right. It is possible to acquire an invinci­
ble tide by what is called adverse possession. After twelve years you will
have a better tide than she. Developers sometimes have problems of this
 482 PETER BIRKS

kind. They set out to buy up all interests in the site. In respect of, say, 2 per
cent of the land, they can find nobody to deal with. They go ahead any­
way. The buyer of the house on the stolen land will get a discount and,
instead of a good title, will take a fee on a very short rope backed, for the
period of adverse possession, by an insurance policy maintained at the
developers’ expense, against the risk of the appearance of someone with a
better tide.
FORMALITY
Formal requirements obHge people to do things in particular ways, usually
ways which put them to some slight extra trouble. It might be, for exam­
ple, that the law would treat a promise as binding only if you made it
meekly kneeUng upon your knees. In practice writing and registration are
the formahties usually insisted upon. There can be lighter and heavier
versions of both.
Land law insists on formality above all at two crucial points in the acqui­
sition of real rights, contract and conveyance. If a landowner decides to
make a gift, there will be no contract. Suppose she wants to give her daugh­
ter the fee simple in a strip of woodland. She will move straight to the con­
veyance, for centuries done by deed."^® The conveyance confers the real
right. The sacrosanct formal requirement of a deed is now being made to
give way to public registration and, more precisely, to computerized entries
on the register. Direct gifts of land, other than by wiU, are not all that com­
mon. Another kind of gratuitous transfer is a conveyance to trustees upon
trusts declared by the settlor. The declaration of a trust of land, which
accompanies the conveyance, has to be evidenced in writing.
Generally speaking a conveyance follows a contract, usually a contract of
sale. Contracts to convey interests in land are void unless they are made in
writing.“*^ The usual sequence is, first, an informal agreement "subject to
contract’; secondly, the formal contract made in writing, by which the par­
ties for the first time become bound to make, and take, the conveyance;
thirdly, the conveyance, which confers the right. In England there is usu­
ally a deplorable delay between the first and second stages, though in
Scodand the lawyers manage to move from stage one to stage two in two
or three days.
This delay means that parties are forced to rely on each other long before
there is any legal tie. The unscrupulous can then exploit the fact that there
is no sanction for withdrawal during this long first stage. The result is
Once sealed in wax, a deed is now no more than a signed and witnessed writing which
declares itself to be a deed (Law of Property (Miscellaneous Provisions) Act 1989, s. 1).
This requirement has been stiffened, and equitable intervention on the basis of part
performance crippled, by Law of Property (Miscellaneous Provisions) Act 1989, s. 2.
 FIVE KEYS TO LAND LAW 483

gazumping and gazundering* A gazumper is a seller who suddenly says that

he will withdraw unless the buyer pays more. A gazunderer is a buyer who
threatens to puH out unless the seller wiD take less. These practices are
unknown in Scotland. They are not a by-product of formality. They are a
by-product of the practice of the professionals who run the housing market
and in particular of their practice in not executing the formal contract at the
point at which all contracts are normally fmahzed—namely» the moment
from which the parties need to be able to rely on one another.
What does formality facilitate? What ends does it serve? Even though it
lies outside the land law, it is convenient to answer by reference to the best-
known formality of all. Everyone knows that a last will has to be made in
writing and signed before witnesses. It is no use just scribbling it on the back
of an envelope or whispering it to one’s best friend. There are huge advan­
tages in this formal requirement. It helps the person making the will think
hard about the job to be done. Later, it goes a long way towards eliminat­
ing doubt and argument at a juncture in human affairs at which strife is all
too near the surface. All heU would break out if a deceased’s last will were
a matter of proving by general evidence, and in the absence of the only per­
son who could really know, what the last wishes really were. The formal
wiU settles the matter.
It is much the same in land law. There is an extra reason too. It derives
from the invisibility of real rights. Just as one cannot see a fee simple, so one
cannot see an easement or a restrictive covenant. A neighbour’s right to pass
over a field does not reveal itself in a pink line, nor will even an infra-red
camera disclose his right to restrict or forbid building. If one is buying a fee
simple from a company, and a firm of soHcitors is in daily occupation of the
premises doing the business of soliciting, one might reasonably infer that the
firm holds a lease. But still a lease is not visible, nor a pyramid of sub-leases.
Real rights have to be made apparent through documents. Acquiring land
would otherwise be a nightmare unless the law made really massive erosions
of the principle of nemo dat. In relation to land, massive erosions of that
principle are wholly unacceptable. Some such erosion does indeed have to
be tolerated. We have already seen that the price of equity’s recognition of
real rights created without formality is just such an erosion, the defence of
bonafide purchase for value without notice. Moreover, the protection of the
system of registration involves some inevitable sacrifice of unregistered
interests.
There is an inescapable tension. Formality breeds hard cases. What of the
person who did not know or was badly advised? She did the job but not in
the precise way in which the law required it to be done. In such cases there
is a terrific clash between two simple principles. One is that you cannot
have your cake and eat it. You cannot take the advantages of formality and
at the same time let off ail those who do things in their own informal way.
 484 PETER BIRKS

The other is that pain should not be inflicted except in case of pressing
necessity. It is not so easy to send someone away empty-handed who would
have taken a fortune if only the right piece of paper had been used.
Wherever there are formal requirements, there will be litigation in which
these two principles meet head to head.
"Whether the rigour of the one will yield ground to the merciful other
win depend on several factors, most obviously on the value attached to the
formality in question, also on the scale of the exception likely to be created
by a concession. If the formality is thought to be really valuable (like the
formal requirements of wills), concessions are unlikely to be made, unless
perhaps it can be shown that the facts in question will recur infrequently or
for some other reason pose no substantial threat to the policy of certainty
through formality. One crucially important factor is whether the interests
of any third party are involved, in such a way as to be threatened if effect is
given to the informal transaction. And has that third party given value? The
defence o f bona fide purchaser for value without notice, which we have
already met, illustrates the respect due to the interests of a stranger who has
given value. And, where the sanctity and efficacy of a register are at stake,
that stranger is likely to prevail even without proof of good faith."^^
Suppose that you have dealt informally with me, in circumstances in
which a decent argument can be made that, but for failure to satisfy formal
requirements, you would have an interest in my house. If it is just a matter
between you and me, with no stranger involved, it may be possible for you
to make some headway. It will be more difficult if I have already sold my
legal fee simple in the house to some stranger. You will have a much harder
time against that stranger who has given value. Suppose the law untouched
by the requirement of registration. Your informally created equitable inter­
est, even if you succeed in establishing that you acquired one, will be vul­
nerable to the defence of bonafide purchase without notice. If we add back
the requirement of registration, that still fiercer hurdle stands in your way.
It is highly unlikely that you will have registered your interest, which in the
absence of special circumstances will be void against the buyer from me.
Some interests override the register. They bind even without registra­
tion. This represents the attempt of the legislator to anticipate the most
^2 Secret and half-secret trusts have been allowed to nibble at testamentary formality.
Nevertheless, ‘there is at least a strong argument that in neither of them does the balance of
advantage lie in suspending the rules [as to formality] . . (Gardner, An Introduction to the
Law of Trusts (Oxford: Oxford University Press, 1990), 86.
Midland Bank Trust Co Ltd. v. Green [1981] AC 513. But the House of Lords did not
deny that positive proof of fraud would disable the third party from relying on register. This
famous litigation contains a warning for lawyers. The destruction of an interest for want of
registration will often entail a liability for professional negligence {Midland Bank Trust Co.
Ltd V. He/fj Stubbs and Kemp [1979] Ch. 384). Others may also incur other tortious liabili­
ties (Midland Bank Trust Co. Ltd. v.. Green (No. 3) [1982] Ch. 529).
 FIVE KEYS TO LAND LAW 485

obvious instances of the problem endemic in formality. One category of

overriding interest is the interest of a person in actual occupation.'^'^ In
Hodgson V. Marks"^^ an elderly lady conveyed her house to her lodger in a
thoroughly iQ-advised attempt to protect him from her nephew. The
nephew was hostile to the lodger’s influence. She had no real intent that the
lodger should have the substance of ownership of the house. But, so far as
the formal requirements of the law were concerned, she had reserved no
interest for herself. The lodger sold and conveyed the land to a third party.
The old lady found herself in danger of losing her house. It was not so very
difficult to find that on these facts she had obtained an equitable interest
under a non-express trust. But she had, of course, not registered that equi­
table interest. The purchaser from the lodger maintained that he was not
bound by it. She was saved by the fact that she had been in actual occupa­
tion at the time of the sale. The underlying idea is that a buyer can see to
his own protection from adverse interests held by those in occupation.
Questions can be put. However, the interest of a person in occupation
overrides the register simply because its owner is in occupation. It is not
necessary to prove that the buyer was at fault in failing to make reasonable
enquiries: ‘If there is actual occupation, and the occupier has rights, the pur­
chaser takes subject to them. If not, he does not. No further element is
material.

CO N C LU SIO N
The purpose has been to introduce five aspects of land law, with a view to
making access to it easier. It was said at the beginning that none of the five
has any natural priority. This conclusion summarizes in slightly different
order.
(1) It is the business of land law to say what property rights can exist in
land, A property right is a real right, a right in rent. It has special character­
istics, which distinguish it from a personal right, a right in personam. It is not
exigible solely against the person against whom it arose.
(2) English law has an inheritance of duality. There are dualities implicit in
tenure, in the difference between security interests and beneficial interests,
and in the relativity oftide. But above all there is the duality between law
and equity. The real rights which land law recognizes can be legal or equi­
table. In a historically unitary system, equitable rights might be called ‘weak’
proprietary rights. Equitable proprietary rights are more vulnerable than legal
rights. That is the price of equity’s more relaxed attitude to ‘reality’.
^ Land Registration Act 1925, s. 70(l)(g). [1971] Ch. 892.
Williams and Glyn's Bank Ltd. v. Boland [1981] AC 487 at 504 (Lord Wdberfbrce).
486 PETER BIRKS

(3) The value of legal certainty, which the equitable jurisdiction seems on
occasion to underniine, is in general reinforced by insistence on the rigour
of formality, especially as against strangers who have given value. Formahty
has meant writing in one form or another, but nowadays it means above aU
the pubhc registration of real rights in land. The legislator, in providing that
some interests override the register, has attempted to foresee the cases in
which, even against strangers, the destruction of unregistered interests
would give rise to screams of pain.
(4) The surface of a piece of land is a cross-section of a space. Every space
has the potential for multiple uses. The law goes some way towards allow­
ing those uses to be split up and dealt with strand by strand. Proprietary
facilitation of that goal has to be kept within limits. The sometimes obscure
nature of those Hmits is a stumbling block.
(5) Time and slices of time have been the dominant theme. Land law
continues to facilitate dealing in slices of time, most obviously through the
lease. But the rise of the managed fund of wealth has brought it about that
the long fight over tying up the land itself is no longer fought. The law has
seen to it that, behind a trust, such future interests can in general be
detached from the land to become interests in a fund. A residual facility
remains to meet the accommodation needs of the family through a trust of
land. The days have gone when land law’s principal mission was to struc­
ture wealth and power. Institutions and individuals alike, if they have
wealth worth planning, managing, and tying up, prefer trust funds with
mixed portfolios.