The âlaw of real propertyâ (or land law) is, obviously, concerned with land, rights in or over land, and the processes whereby those rights and interests are created and transferred. One starting point might be to consider the meaning of âlandâ itself or, more properly, the legal definition of âlandâ as found in the Law of Property Act 1925. According to section 205(1)(ix) of the LPA 1925:
Land includes land of any tenure, and mines and minerals ⌠buildings or parts of buildings and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land.
Clearly, this is complicated and the statutory definition assumes that the reader already has a working knowledge of the basic concepts of land law, such as âland of any tenureâ (e.g. a âfreeholdâ or âleaseholdâ) and âincorporeal hereditamentsâ (e.g. âeasementsâ). In essence, what this statutory definition seeks to convey, and what is at the heart of land law, is the idea that âlandâ includes not only tangible, physical property such as fields, factories, houses, shops and soil, but also intangible rights in the land, such as the right to walk across a neighbourâs driveway (a practical example of an easement), the creation of a âchargeâ on land to secure a debt (a âmortgageâ), the right to control the use to which a neighbour may put his or her land (a ârestrictive covenantâ) or the right to take something from anotherâs land, such as fish (being a âprofitâ and another example of an âincorporeal hereditamentâ). As a matter of legal definition, âlandâ is both the physical asset and the rights that the owner or others may enjoy in or over it. Consequently, âland lawâ is the study of the creation, transfer, operation and termination of these rights and the manner in which they affect the use and enjoyment of the physical asset.
It is also important to appreciate why land law is fundamentally different from other legal disciplines, such as the law of contract or the law of tort. As we shall see, very many transactions concerning land or intangible rights in land take place through the medium of a contract. Thus, land is sold through a contract and a mortgage is also a contract of debt between lender and landowner. Similarly, the right to enjoy the exclusive possession of anotherâs land for a defined period of time (a âleaseâ) may be given by a contract between the owner of the land (technically, the owner of an âestateâ in the land and in this context the âlandlordâ) and the person who is to enjoy the right (in this context the âtenantâ). Obviously, the conclusion of such a contract would bind the parties to it as a matter of simple contract law and the contract might require one of the parties to âcompleteâ the transaction by executing a âdeedâ that formally âgrantsâ the right to the other.6 In such cases, the contract is said to âmerge with the grantâ, and the contract ceases to have any separate existence as a legal concept.7 Indeed, in everyday conveyancing practice, the parties to such a transaction may choose to proceed directly âby grantâ (i.e. by deed) without first formally concluding a separate contract. Clearly, however, whether the parties are bound by a âmereâ contract, or by the more formal âdeed of grantâ, they may enforce the contract or deed against each other: in the former case, by an action for damages or specific performance; in the latter, by relying on the covenants (i.e. promises) contained in the deed. Yet, the thing that is so special about âreal property rightsâ, whether created by contract, by grant, or by some other method,8 is that they are capable of affecting other people, not simply the parties that originally created the right. To put it another way, âland law rightsâ are capable of attaching to the land itself so that any person who comes into ownership or possession of the land may be entitled to enjoy the benefits that now come with the land (such as the right to possess the land exclusively, or the right to walk across a neighbourâs land to get to the highway), or may be subject to the burdens imposed on the land (such as the obligation to permit the exclusive possession of another person, or not to interfere with the neighbourâs right of way). This is the âproprietaryâ nature of rights and interests in land, and it is very different from the merely âpersonalâ obligations that an ordinary contractual relationship establishes. In fact, another way of describing what land law is about is to say that it is the study of the creation and operation of proprietary rights, being rights that become part of the land and are not personal to the parties that created them. This is represented diagrammatically in Figures 1.1 and 1.2.