land law

LAND LAW
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Land Law
The most popular definition of conveyancing is the process of transferring legal title of a given property from one owner to another. Consequently, the instrument showing proof of the transaction is referred to as a conveyance and this may be a deed or a lease. Different jurisdictions have established laws and regulations to govern how property and more specifically, laws relating to the transfer of land. This is because if no rules exist to regulate such transactions, then incidences of litigation will undoubtedly increase due to fraud. In areas such as the United Kingdom, a variety of statutes such as the Land Registration Act of 2002 as well as the Law of Property Act of 1925 are just some of the laws governing the acquisition of land.
Formality refers to the requirement that a matter is put in a prescribed form if it is to be considered legally valid and binding. Formalities permeate all aspects of law, although they are particularly prevalent in Land law. When this area is contrasted with, for instance, contract law, it becomes apparent that the latter has fewer requirements of form. This can be attributed to the critical position that land holds in British history, as well as the fact that land ownership is considered prestigious. Under English trust law and contract law, formalities are usually required in certain types of transaction. In a small number of cases, trusts and agreements will not be enforceable unless they are consistent with the prescriptions of a specific statute.

Despite the laws that exist, it remains apparent that a trend is developing where property rights in land become acquired without following proper formalities. When this happens, it is the individuals with legal interests over the area are disadvantaged. Instances where this can happen include selling, leasing or mortgaging land without following the requisite procedure. To know whether proper formalities have been observed, it is imperative to understand just what they are when it comes to transacting land by the law.
One of the most common formalities in matters pertaining to transaction of land is that it should be written. Any agreement pertaining to the transactions of land ought to be written. The most prominent reason for this is that land is a sensitive and emotive issue. The financial implications related to contracts of land are also very significant. Therefore it becomes a imperative to first determine if the transaction ought to be recorded in writing and what specific documents are needed to complete the transaction. The general rule that exists is that any interest or legal estates ought to be created by deed. To be valid, the deed ought to be signed and attested. The rule or regulation that any agreement pertaining to the sale of land should be in writing can be found in section 2 of the Law of Property (Miscellaneous Provisions) of 1989. The contract should not only be in writing but signed by both parties as well. This is an indicator of consensus between the parties to the transaction. In Firstpost Homes Ltd v Johnson a dispute arose as to whether a contract existed. When the two parties sought to do business, a letter containing the agreement and the plan was sent to one of them. However, only the plan and not the agreement was signed by both parties. The court determined that the Law of Property (Miscellaneous Provisions) was not met as it was only one of the parties who signed the actual contract. Because of the high level of complicated nature of formalities, it is worthwhile to note that parties may consult legal advisers for assistance.
Further, the same interests or legal estates created through gifts, sale or disposal should also be through deeds. In the creation and sale of legal estates, there are two important formalities needed. One is the contract that creates or transfers the legal estate while the second is the transaction that is completed once the legal estate is transferred. The deed requirements are expressly set out in the Law of Property Act of 1925 in various sections. The requirements include the fact that the transfer of a legal estate should take the form a deed. However, the same statute makes an exception and lists various transactions that may not necessarily take the form of a deed. These are disclaimers as provided for under the Insolvency Act of 1986, receipts, assents made by personal representatives, a property that has been surrendered through operation of the law, and vesting orders made by a court or other relevant authority. The same statute also allows landlords to create leases without deeds under certain conditions. These conditions are outlined in s.54 (2) and include a lease that is granted for three years or less, it takes effect immediately, and it is awarded to the tenant to offers the best price for it without considering premiums or fines. In Long v Tower Hamlets, a tenancy agreement was executed by the parties about 21 days before the tenant could move into the apartment. The question that arose was whether the lease fell under section 54 of the Law of Property Act and was whether the tenancy agreement could be created without a deed. The court held that since 21 days had elapsed since the tenant came into possession of the contract, it could not be exempted under section 54.
Registration of land and property in the United Kingdom also has specific formalities that need to be followed to not only complete the process but to make it legal as well. The Land Registration Act of 2002 (LRA) that replaced the Land Registration act of 1925 handles transfers and assignments. The primary goal of establishing the law was to ensure ‘total registration’ where whoever registers a title gives an accurate description and state of the title to whatever property or land he owns. Ideally, this ought to be helpful to no end. Consequently, the LRA necessitates on to have first registered on the specific transfer of an estate that is on freehold terms. The registration should be for valuable consideration, either through a court order or as a gift or even using an assent. The act also requires one to register a transfer of any legal estate that might be unregistered. The format to follow and which forms to fill when registering land are all available at the lands registry. Therefore no excuse exists as to why one should not designate the property as prescribed by the Land Registration Act of 2002 and adequately do so as well.
Once all the data has been collected then a proper system of registration can now be said to be in place. All the relevant information related to land and property including the rights of third parties are harmonized and put into the register. It is imperative that rights of the third parties as well as information about who owns what land be easily accessible. However, other things may not be relevant or be reflected by the system. Such includes the full history of the land. Further, any rights that have been obtained through fraudulent means are void even if they do appear on the register. Anyone who wishes to acquire registered titles only has to go to the entry to find out about the most significant details about the land. The government who is the custodian of the entry is liable to anyone who seeks information and misled by such information. The registration of titles can come about in one of two ways. It may be done voluntarily by existing landowners. Alternatively, it may be done compulsorily through first registration when a landowner sells unregistered land. All the requirements for certification of land are well set out in the statute under section 4.
Why adhere to the formalities?
The importance of adhering to the formalities cannot be overstated. If the formalities are not properly followed then the consequences can be severe to third parties as well anyone with legal interests over the land. One fundamental formality is that the contract ought to be in writing. The most obvious reason is that the amounts involved in matters related to land and property are very high. Therefore, written contracts are not only used to make the agreement enforceable but to provide evidence in case of litigation ensues. However, without a commitment, just a non-contractual remedy can be sought one of which includes proprietary estoppel. The availability of a non-contractual remedy seems to legalize the lack of a contract in the first place. This is not the case however as it was held in Yaxley v Gotts that proprietary estoppel could not be used to enforce a contract that was illegal ab initio.
Failure to create an interest or legal estate through a deed also has serious ramifications. The most adverse of these consequences is that the title will not pass only because it does not exist. However, the intended recipient of the title may stake a claim in equity. The holding in Longman v Viscount Chelsea is that a signed but undelivered deed may either be a non-deed or an escrow. This largely depends on the parties to the transaction. If they have no intention to deliver the deed, then it becomes a non-deed. Equity, however, comes in to aid those who ought to receive a legal right from another but are yet to get such a right.
Registration is perhaps one of the most significant things in the conveyancing process. Not adhering to it is also bound to cause a stir and disadvantage those with interests and potential interests as well. It enables parties who are not necessarily part of the transaction such as the government to monitor the usage and fragmentation of land. If not done correctly, registration has the potential to interfere with so many things that extend beyond monitoring how land is transacted and used. It also provides purchasers of land with insurance if anything goes wrong because they can go back and sue the custodian of the register for failing to give or keep proper information. Once the property is registered, then the owner acquires an indefeasible title as against the whole world, and it is up to anyone claiming that the property is theirs to prove it. Details about land and other properties is also laid bare for prospective buyers.
Conclusion
It is apparent that the acquisition of proprietary rights in land without observing proper formalities is disadvantageous to those with legal interests in the land. It is also worth pointing out that because of the level of complexity of bureaucracies, lawyers are likely to be involved, and that the professionals will be able to detect any potential sources of conflict and make appropriate provisions for the same. Some of the most significant formalities include having written contracts, creation and transfer made through deeds, and registration. This is important in clarifying the intentions of both parties and resolving any confusion that might have been present. Potential clients, as well as the government, may have vested or prospective interest in land or property in question. It is up to the owner to ensure that the property in question as well as the rights in it have been acquired in the right manner. Anything short of that will only lead to multiple disgruntled parties.
Bibliography
Books
Abbey R, and Abbey M, A Practical Approach to Conveyancing (19th edn, Oxford University Press 2017)
Abbey R, and Richards M, Property Law, (Oxford University Press 2016-2017)
Bay J, Unlocking Land Law (1st edn Routledge 2016)
Bogusz B, and Sexton R Complete Land Law: Text, Cases, and Materials (Oxford University Press 2017)
Clarke S, and Greer S, Land Law Direction (1st edn. Oxford University Press, 2014)
Dixon M, Modern Land Law (2 edn Routledge 2014)
Goymour A, Dixon M and Watterson S New Perspectives on Land Registration: Contemporary Problems and Solutions (1st edn Bloomsbury Publishing Plc, 2018)
Mackenzie J, Textbook on Land Law (12th edn. Oxford University Press, 2016)
Roddell A, Property Law and Practice 2017/2018 (2nd ed. College of Law Publishing, 2017)
Stone R, and Devenney J, The Modern Law of Contract (Routledge 2018)
Stroud A, Making Sense of Land Law (revised edn. Macmillan International Higher Education, 2013) 321
Online Sources
LexisNexis ‘Transfers and assignments-overview’ (2014) https://www.lexisnexis.com/uk/lexispsl/property/document/393788/55KG-P261-F18C-42J6-00000-00/Transfers-and-assignment accessed 19th February 2018
Statutes
Land Registration Act of 2002
Law of Property Act of 1925
Law of Property (Miscellaneous Provisions) of 1989