Docstoc

LAND

Document Sample
LAND Powered By Docstoc
					LAND TENURE
               LAND
• Land Ownership
• Land Tenure
• Land Sales
             Land definition
• Mitchell v Mosley 1914

"the grant of land includes the surface and
  all that is above - houses, trees, and the
  like - ... and all that is below, i.e. mines,
  earth, clay, etc.".
            Land definition
• Land and Property Act 1925

“Subject to certain exceptions land includes
  the sub-soil down to the depths of the earth
  and the airspace above the land to a
  reasonable height”
                                           Property
                                                Classification of property


                                                        Property


                 Real immovables                                             Personal
                  Freehold land                                              movables


Corporeal Hereditaments   Incorporeal Hereditaments             Chattels                   Chattels
    land,buildings               easements                       Real                      Personal
                                                                leases


                                                                           Choses in Action            Choses in
                                                                      debt, proceeds of cheque        Possession
                                                                          patent,copyright            cow, horse
                                                                               shares
              Land Ownership

                             Classification of estates
                                          Estates

                                     Freehold                 Leasehold             Tenancies
           Freehold                                         Freehold not
         of Inheritance                                     of Inheritance
Fee Simple                Fee Tail              Estate for Life         Pur Autre Vie
           Land Ownership
• Fructus naturales
  – growing naturally
• Fructus industriales
  – growing as a result of industry i.e. sown crops
       Fee simple ownership
• The natural right of support for land
• The right of alienation
• The right of enjoyment
 Limits of fee simple ownership
• Limits of the land
   – boundary
• Rights of others over land
   – Easements
   – Mortgages
• Statutory restrictions
• Treasure
   – Treasure Act 1996
• Minerals
    Limits of fee simple ownership
•   Wild animals
•   Liability in Tort
•   Fishing rights
•   Water rights
•   River beds
•   Chattels found on land
         Treasure Act 1996
• “….An Act to abolish treasure trove and to
  make fresh provision in relation to
  treasure….”
• The Treasure (Designation) Order 2002
               Liability in Tort
• Tort is a civil wrong independent of contract
• A Tort is not a crime
   – crimes result in punishment
   – a tort results in the righting of a wrong
• A Tort is not a contract
   – a contract is an agreement between two individuals
   – Torts are duties fixed by law
           Liability in Tort
• a wrong against the person e.g. assault
• wrongs to reputation e.g. defamation
• wrongs to property e.g. trespass
• wrongs to persons or property e.g. nuisance
• wrongs of interference in contractual
  relations e.g. inducing a breach of contract
• abuse of le.g.al proceedure e.g. malicious
  prosecutions.
               Easements
• An easement is the right to use, or to
  restrict the use of, the land of another
  person in some way
• rights of way, rights of light, rights to
  abstract water and rights to the support of
  buildings.
              Easements
• dominant and servient tenement
• relate to property
• If two pieces of land come under the same
  ownership then the easement ceases to
  exist
         Easements
        right of way


HOUSE
           A

                      B


DOMINANT       SERVIENT
TENEMENT       TENEMENT
   Easement
right of support
               Mortgages
• the borrower (morgagor) obtains a loan
  from another person (a mortgagee) on the
  security of a property
• deeds relating to the land are transferred
  whilst loan is repaid
• mortgagee has the right to reposess on
  repayment default
       Land Tenure

“Conditions or period of holding
             land”
              Land Tenure
• Owner-occupation
• Landlord- Tenant
  – Farm Business Tenancy
  – Agricultural Holdings Act 1986
• Partnerships
• Share Farming (Joint Venture)
• Short term letting and licences
         Land Tenure

           Ownership Occupation


                       
Owner -
Occupier


Tenant                 
Landlord               
          Owner Occupation
• owner of the land occupies land

• increase in owner occupation
  – decline in tenanted estates
  – capital taxation
  – legislation restricting the rights of the owner
    over the tenant (various Agricultural Holdings
    Acts).
         Owner Occupation
• Advantages
  – Freedom to use land as you please


• Disadvantages
  – Large quantities of capital tied up
  – Total responsibility for land and buildings
             Landlord-Tenant
• Landlord (owner of land)
  –   land
  –   farmhouse
  –   buildings
  –   roads
  –   all other items of infrastructure
  –   supplied in exchange for an annual cash sum
           Landlord - Tenant
• Tenant
  – livestock
  – machinery
  – working capital.
                Legislation
• Agricultural Holdings Act 1986
  – agricultural tenancies had full security of
    tenure
  – indefinite period from year to year until
    terminated by a 12 mths notice to quit or on on
    the death of the tenant
• Agricultural Tenancies Act 1995
  – Farm Business Tenancy
  – less interference by law
      Farm Business Tenancy
• Agricultural Tenancies Act 1995
• Applies to all farm business tenancies, both
  written and oral, beginning on or after 1
  September 1995
• The principle of freedom of contract
      Farm Business Tenancy

• Reasons for legislation

• encourage landowners to let land (only
  35% of agricultural land is tenanted)

• to allow tenants to diversify into other
  businesses whilst remaining agricultural
  tenants
       Farm Business Tenancy
• Reasons for legislation

• to enable effective enforcement of environmental
  and conservation covenants

• to abolish the recourse to unsatisfactory short
  term arrangements which were being used to
  avoid the security provisions of the Agricultural
  Holdings Act 1986
      Farm Business Tenancy
          exclusion (1)
• Existing tenancies protected under the
  Agricultural Holdings 1986 Act
• Succession tenancies where two
  successions have not taken place
      Farm Business Tenancy
          exclusion (2)
• Variations in an Agricultural Holdings
  1986 Act tenancy between the same
  landlord and tenant.
  – Tenancies predating 1 September 1995 cannot
    be converted to a Farm Business Tenancy.
      Farm Business Tenancy
          exclusion (3)
• Tenancies agreed in contract before 1
  September 1995 but commencing after that
  date fall under the provisions of the
  Agricultural Holdings 1986 Act.
• Otherwise from 1 September 1995 all new
  tenancies will be assumed to be under the
  terms of the 1995 Act.
        Farm Business Tenancy
         statutory intervention
• 6 areas only
  –   definition of farm business tenancy
  –    notice required to terminate a tenancy
  –    tenant's right to remove fixtures
  –    rent review
  –   compensation
  –   resolution of disputes
      Farm Business Tenancy
• business and agricultural conditions
• part of the land must be farmed for the
  purposes of trade or business
• agriculture condition requires that the
  tenancy must be primarily or wholly
  agricultural
• business conditions allow diversification
  away from agriculture
      Farm Business Tenancy
• Fixed term tenancies of 2 years or less
  automatically expire on the term date
• Notice of at least 12 months but less than
  24 months is required terminate a tenancy
  of over 2 years
      Farm Business Tenancy
• Tenant can seek compensation for
  improvements made during the tenancy
• Opt out of rent reviews
• Rent can be varied in relation to objective
  criteria
Agricultural Holdings Act 1986
• There must be a contract of tenancy to let
  land for use as agricultural land
• The land must be used for trade or business
• The letting to the tenant must not be
  "during his continuance in any office,
  appointment or employment held under the
  landlord"
     Definition of Agriculture

"including horticulture, fruit growing, seed
   growing, dairy farming and livestock breeding
   and keeping, the use of land as grazing land,
   meadow land, osier land, market gardens and
   nursery grounds, and the use of land for
   woodlands where that use is ancillary to the
   farming of land for other agricultural purposes"
   Horses and the Agricultural
         Holdings Act
• Grazing non-agricultural animals e.g..
  riding horses, by way of business is using
  land for agricultural purposes
• Grazing only - no shelter - non agricultural
  business
         Tenancy agreement
• The relationship in terms of rights and
  obligations between landlord and tenant is
  governed by the tenancy agreement.
• No compulsion for FBT to have a written
  tenancy agreement.
• It is in the best interest of Landlord and
  Tenant to have a written agreement.
         Tenancy agreement
• Some provisions in the 1995 Act apply
  automatically unless parties agree in
  writing to exclude or modify
  – rent
  – disputes procedure
           Tenancy agreement
• Names of the parties involved.
• Particulars of the holding
  – map
  – area
• Duration of tenancy
• Rent payable including timing.
• Rates payable by landlord and tenant
  including drainage rates.
           Tenancy agreement
• Covenants by the tenant
   – manurial value
   – insure all deadstock and harvested crops against
     damage by fire
   – not to sub-let without permission
   – conservation
   – anything else
• Power for the landlord to re-enter onto the
  holding in the case of a breach by the tenant.
          Security of tenure
• Significant under the 1986 Act
• Minimal under the 1995 Act
• Security of tenure for 2 successions in
  tenancies created before July 12, 1984
• Eviction very difficult
  – General Notice to Quit
  – Uncontestable Notice to Quit
 Eligible successors to a tenancy
       under the 1986 Act
• Within qualifying degrees of kindred to
  deceased tenant i.e. wife, brother, sister,
  child or treated child.
• Deriving a living from the holding.
• Occupiers of a commercial unit of
  agricultural land not eligible.
• No succession to more than one
  commercial unit.
          Landlord-Tenant
• ADVANTAGES
 – Enables landlords with no farming skills to
   utilize land for agricultural purposes.
 – Gives opportunity for persons with limited
   capital to enter farming without having to
   purchase land.
 – Enables landlords with insufficient capital to
   utilize land for agricultural purposes.
         Landlord-Tenant
• ADVANTAGES
 – Tenancy agreement can specify a minimum
   standard of farming.
          Landlord-Tenant
• DISADVANTAGES
 – Landlord has poor land owning skills.
 – Landlord wealth may not be sufficient to
   maintain buildings etc..
 – Capital planning is limited.
 – Tenants have considerable security under 1986
   Act conditions but much less under the 1995
   Act.
              Partnerships
• Landlord retains vacant possession
• The return on capital from owning land is
  low compared to the return on farming the
  land. A partnership enables a landlord to
  feel the benefit of both.
• Retains a proportion of control over use of
  land.
               Partnership
• Applies for a limited period and can
  therefore be terminated at relatively short
  notice.
• Enables landowner to farm land when
  capital and/or income may be limiting for
  landlord-tenant relationship.
            Partnership
    benefits to farming partner
• Farming partner has opportunity to have a
  stake in an agricultural business.
• Amount of capital required is less than in
  an owner occupied situation.
       Partnership agreement
• Name, place of business, bankers and
  cheque signing rights.
• Capital provided, shares of partners and
  provision for ploughing profits back into
  the business.
• Salary levels.
• Expenses rights.
• Profit sharing.
       Partnership agreement
• Dealing restraints, bounds of
  purchasing/selling rights.
• How to dissolve the partnership; notice and
  circumstances e.g. bankruptcy or
  incapacity.
• Provision due to death of one or other of
  the partners. Termination will take place if
  no provision is made.
           Partnership agreement

• Partners working time to ensure that one is not a
  sleeping partner.
• Partnership property.
• Insurance, especially important due to joint
  liability.
• Accounts, where they are to be kept, by whom,
  and who is responsible for drawing up the
  accounts.
• Arbitrator for disputes.
 Share Farming or Equine Joint
           Venture
• Joint venture between two separate
  businesses.
• It is deliberately designed to avoid the
  creation of partnership or tenancy
• Short term 1-5 yrs
 Share Farming or Equine Joint
           Venture
• OCCUPIER supplies
  –   land
  –   buildings
  –   fixed equipment
  –   share of livestock


• SHARE FARMER supplies
  – labour
  – working machinery
  – share of livestock
   Share farming - OCCUPIER
• he does not want to participate in the day
  to day management a business;
• he wishes to give someone an opportunity
  to start a business;
• he wants to retain vacant possession of the
  land and share the risk of farming/equine
     Share Farming - SHARE
            FARMER
• opportunity to get started in
  farming/equine
• opportunity for an established business to
  expand and spread the fixed costs of labour
  and machinery
    Share farming/equine joint
             venture
• The Share farmer and Occupier derive their
  respective incomes by sharing farm output
• The PROPORTION is determined by the
  value of each party's contribution of
  FIXED COSTS.
• Detailed budgets can then be drawn up
  using the proportions
      Share farming example
• Area
  – 75 ha
• Stocking
  – 90 Dairy cows
  – 200 Mule ewes
  – 12 ha barley
• Share farmer has £6000 interest to pay
        Share farming example
Value of Fixed Costs      Total £   Occupier £   Share £
Labour (including share    27000                  27000
farmer)
Machinery                  25000                  25000
Rent @£140/ha              10500        10500
Maintenance                  7000        7000

TOTAL                      69500        17500     52000
PROPORTION                                25%       75%
      Short term letting and leases
• Grazing Licences
   – A licence is a permission to perform an act which
     would otherwise be unlawful in regard to the land of
     another person.
• A Grazing Agreement can contain specifications
  which limit the use of land;
   – Type of Stock
   – Stocking rate
   – Fertiliser use
   – Mowing dates
      Buying and selling land
• The transfer of land from the possession of
  one to another is called a CONVEYANCE.
• This normally requires the services of a
  solicitor for both Vendor and Purchaser.
                 Root of title
• The disposition of land
   – dealing with the whole of the legal and equitable
     estate
   – adequate description of the property and revealing no
     defect in title.
• A "good root title" must show title for at least 15
  years.
• The vendor has to provide at his own expense an
  abstract of his title.
         Particulars of sale

• The particulars describe the property sold.
• They must include
  – (i) the physical extent of the property;
  – (ii) the estate or interest in the land;
  – (iii) the benefit of the rights attaching to the
    land;
  – (iv) any burdens to which the land is subject.
            Caveat Emptor
• Caveat Emptor "buyer beware"
• Applies to all land sales.
• Purchaser should make his own searches and
  inquiries and employ a surveyor to inspect the
  property.
• Vendors must not make misrepresentations on
  the nature of the property.
• Particulars must not mislead and provide a
  favourable perspective of the property.
         Conditions of sale

• Conditions of sale describe the terms under
  which the property is sold.
• Standard forms are available to cover most
  transactions.
• Conditions may be varied to take into
  account any special circumstances.
          Land Registration
• Registration of the title and not the land
  itself
• Compulsory on all land sold since 1990
• Inherited, gifted land does not require
  registration
• Land Certificate confirms details held at
  Land Registry
          Land Registration
• Open register
• Searches of land register are possible to
  determine land ownership
• Incomplete register
             Land Charges
• Rights and actions over land are
  registerable with Land Registry
• Land Charges Act 1972
              Land Charges
• Six classes exist
  – CLASS A
     • financial payments due on application and enforced
       by statute e.g. drainage charges
  – CLASS B
     • Charges imposed automatically by statute
            Land Charges
– CLASS C
  • Puisine mortgages (not protected by security often
    a second mortgage)
  • Limited owners charges (discharges of death
    duties)
  • Estate contracts (contract, an option to purchase, a
    right of pre-emption, a right to determine,
    surrender or renew a lease)
  • General equitable charges (informal mortgages)
              Land Charges
– CLASS D
  •   Death duties
  •   Capital transfer tax/inheritance tax
  •   Restrictive covenants
  •   Equitable easements
– CLASS E
  • easements created before 1 Jan 1926
– CLASS F
  • charges arising from marriages
             Local Land Charges
• Obligations ('charges„) enforceable against successive
  owners by local authorities, or central government
• Local Land Charges Act 1975
• Held by District/Unitary Councils
   –   Building Preservation Notice
   –   Light Obstruction Notice
   –   New Road Developments
   –   Sewer Drainage
   –   Slum Clearance
   –   Compulsory Purchase
           Local Land Charges
• General financial charges    •   New Towns charges
• Specific financial charges   •   Civil aviation charges
• Planning charges             •   Open cast coal charges
• Other charges                •   Listed building charges
• Fenland ways                 •   Light obstruction notices
  maintenance charges          •   Drainage scheme charges
• Land compensation
  charges
     Sale by public auction

             VENDOR




AUCTIONEER             BUYER
    The requirement of writing
• Law of Property (Miscellaneous
  Provisions) Act 1989
• Contracts for the sale or disposition of land
  must be in writing and incorporate all the
  conditions of sale
      The requirement of writing
•   An agreement for sale
•   A description of the parties
•   A description of the property
•   A statement of the price
•   It must be signed by the person to be
    charged or his agent
    The requirement of writing
• There are exceptions:-

• Contracts made in the course of a public auction
• Contracts to grant a lease not exceeding 3 yrs
  taking effect in possession at the best rent
  reasonably available
• Contracts regulated under the Financial Services
  Act 1986
                Common land
• Land owned by one person where others hold
  rights of common over the land
• Halsbury‟s The Laws of England - definition in
  Cooke‟s Inclosure Acts (4th Edn)
   “A right, which one or more persons may have, to take
     or use some portion of that which another man‟s soil
     naturally produces”.
• Commons Bill currently in Parliament
                Common land
• common of pasture
  – right to graze cattle, sheep, horses or other animals
• common of turbary
  – right to dig turves and peat
• common of estovers
  – right to cut timber for fuel or building repair
• common of pannage
  – right to turn out pigs to eat acorns and beech mast
              Common land
• common of piscary
  – right to fish
• common in the soil
  – right to take gravel, sand, stone and other
    minerals.

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:193
posted:2/5/2010
language:English
pages:82