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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.
