Commonwealth Common-Law Land Law (LLB Academic Unit)

# Commonwealth Common-Law Land Law — Grounded Topic Notes

GROUNDED (web-sourced from free-access law: BAILII / SingaporeLII / elitigation.sg) - citations real but not cross-checked against our DB; verify before deploy.

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## Part 1: Foundational Concepts

### Fixtures vs Chattels (Annexation Test; LPA 1925 s.62)

The distinction between fixtures and chattels turns on two tests:
1. **Method and degree of annexation** — how firmly the object is attached to land.
2. **Purpose of annexation** — whether the object serves the land's permanent improvement or remains a chattels for better enjoyment of the chattels itself.

The purpose element is determined objectively from evidence, not from subjective intent of the person who annexed the object. Even buildings can remain chattels if they can be removed without destruction and their purpose is better enjoyment as a chattels rather than permanent land improvement.

**Authority**: Elitestone v Morris [1997] 1 WLR 687 (House of Lords); fixtures and chattels annexation doctrine.  
**Source**: BAILII

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### Tenure and Estates Doctrine

Land law is founded on the concept of tenure (the relationship between landowner and superior) and estates (the duration of ownership interest). Key estates are:
- **Freehold** — the highest estate; fee simple absolute in possession.
- **Leasehold** — a term of years certain, inferior to freehold.
- **Life interests** — estate for the life of a named person.
- **Future interests** — remainders and reversions.

This hierarchical framework underpins all Commonwealth land law.

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### Numerus Clausus Principle

The law does not permit creation of new or novel proprietary interests at the owner's discretion. Only recognized categories of property interests are enforceable and can bind successors in title.

**Founding Principle**: "It is not competent to create rights unconnected with the use and enjoyment of land and annex them to it so as to constitute a property in the grantee." (Chief Baron Pollock, Hill v Tupper.)

**Authority**: 
- Keppell v Bailey (1834) EWHC Ch J77 — established numerus clausus principle; Court held that incidents of a novel kind cannot be devised and attached to property at the owner's discretion, as it would cause great detriment and confusion of rights.
- Hill v Tupper (1860) EWHC Exch J83 — illustrative: right to conduct commercial activity (boat hire) on another's land, even when granted exclusively, cannot constitute a valid easement because it lacks nexus to use and enjoyment of dominant land.

**Source**: BAILII

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## Part 2: Title Systems

### Registered Land — Land Registration Act 2002; Overriding Interests

Under the LRA 2002, title to land is registered at the Land Registry. The registered proprietor holds legal title subject to entries on the register and overriding interests (interests that bind the proprietor despite not being registered).

Overriding interests are defined in LRA 2002, Sch 3 (for first registration) and Sch 4 (for dispositions by registered proprietor). Common examples: short leases (under 7 years), interests of persons in actual occupation, easements by prescription.

The LRA 2002 reformed adverse possession via Schedule 6 — the 12-year rule under the Limitation Act 1980 was replaced with a regime requiring the registered proprietor's consent (or court order) to apply for a legal title after 10 years' adverse possession.

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### Unregistered Land — Doctrine of Notice (Actual/Constructive/Imputed)

In unregistered land, title is proved by deeds and chains of ownership. Successors in title are bound by interests (such as restrictive covenants) if they have notice of them.

**Notice has three forms**:
1. **Actual notice** — express knowledge of the interest.
2. **Constructive notice** — knowledge that a reasonable person with due diligence would have acquired (e.g., from searches, inspection, documents).
3. **Imputed notice** — knowledge of an agent (e.g., solicitor) acting on behalf of the purchaser.

A purchaser for value without notice takes free of unregistered interests (doctrine of bona fide purchaser without notice).

**Authority**: Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783 — "regular and repeated absence" can be consistent with "actual occupation" and defeat a purchaser's claim. Illustrates the significance of actual notice and occupation.

**Source**: BAILII

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### Overreaching

Overreaching is the mechanism by which a purchaser of land can take free of beneficial interests under a trust. Where a disposition is made by trustees (e.g., in a sale of land held on trust), the beneficial interests are transferred to the capital proceeds rather than binding the land in the purchaser's hands, provided the purchase money is paid to two trustees (or a trust corporation).

LPA 1925 s.27 sets out the overreaching rules. TOLATA 1996 applies where land is held on trust.

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## Part 3: Co-ownership

### Joint Tenancy vs Tenancy in Common — Four Unities

**Joint tenancy** exists when co-owners hold legal title in the following way:
- **Four unities** required: (i) unity of time (vested at same date), (ii) unity of title (acquired by same deed/grant), (iii) unity of interest (equal share and same nature of estate), (iv) unity of possession (each entitled to occupy whole).
- **Right of survivorship** — on death of joint tenant, interest passes to survivors automatically.

**Tenancy in common**:
- No right of survivorship.
- May hold in unequal shares.
- Each tenant has individual title (severable).
- Unity of possession only (all co-tenants may occupy).

LPA 1925 reformed co-ownership at law; all legal estates of co-ownership must be held as joint tenancies only. Beneficial equitable interests can be joint tenancies or tenancies in common.

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### Severance Methods (Williams v Hensman Categories)

A joint tenancy in equity may be severed (converted to tenancy in common) by three modes identified in Williams v Hensman (1861) EWHC Ch J51:

1. **Operating on his own share** — one joint tenant unilaterally divests himself of his interest by acts such as assignment of his share to a third party or declaration of severance. Note: mere intention expressed privately (not communicated) is insufficient.

2. **Mutual agreement** — express or implied agreement between all joint tenants to sever and hold as tenants in common.

3. **Course of dealing** — conduct that is sufficiently intimate to demonstrate that the interests of all were mutually treated as constituting a tenancy in common. This requires an objective inference, not merely subjective intention.

**Authority**: Williams v Hensman (1861) EWHC Ch J51 — Court stated: "A joint tenancy may be severed by mutual agreement; and in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common."

**Source**: BAILII / elitigation.sg (cited in Singapore Court of Appeal)

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### TOLATA 1996 — ss.14-15 Disputes; Trusts of Land

Trusts of Land and Appointment of Trustees Act 1996 replaced the Settled Land Act 1925. Under TOLATA 1996:
- Land is held on trust for the beneficiaries.
- Trustees have power to sell, lease, or otherwise manage the land.
- On application by a beneficiary, the court may order the sale or partition of co-owned land under s.14.
- The court has discretion to make such order as it thinks fit, considering the purposes of the trust and the circumstances (s.15).

Section 15 requires the court to consider: (i) the intentions of the settlor(s), (ii) the purpose(s) for which the property is held, (iii) the welfare of children occupying the property, (iv) the interests of any secured creditor.

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## Part 4: Leases

### Essential Characteristics (Certainty of Term; Street v Mountford)

A lease must have:
1. **Certainty of commencement** — clear date the lease starts.
2. **Certainty of duration** — the term must be ascertainable; it cannot be perpetual or uncertain.
3. **Certainty of end** — clear date or event marking the termination.

**Certainty of term doctrine**: A lease granted "for so long as the land is required by the council for the purposes of widening the highway" (i.e., uncertain duration) is void for uncertainty.

**Authority**: 
- Prudential Assurance Co Ltd v London Residuary Body [1991] UKHL 10 — House of Lords held that a lease granted until land is "required by the council" was void for uncertainty of term. The House restated: "A lease must have certainty in the commencement of the term, in the continuance of it, and in the end of it, so that all these ought to be known at the commencement of the lease."
- Street v Mountford [1985] UKHL 4 — established that residential accommodation granted for a term at rent with exclusive possession (and no lodging arrangement) is a lease, not a licence. The test is: exclusive possession + rent + term = lease.

**Source**: BAILII

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### Assignment and Subletting; Privity of Contract/Estate

On assignment of a lease, the new lessee takes the lease in place of the original lessee.

**Privity of contract** — the original lessor and original lessee are bound by the contract of the lease for all covenants.

**Privity of estate** — where there is a legal relationship (landlord–tenant), each party is bound by covenants that "touch and concern" the land. Privity of estate allows the current landlord to enforce and sue the current tenant.

Restrictions on assignment and subletting may be imposed by the lease. A covenant "not to assign" is strictly construed.

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### Licences vs Leases

A **licence** is a revocable permission to use land; the licensee has no proprietary interest and does not have the protection of the Rent Acts.

A **lease** is a proprietary interest with the hallmark of exclusive possession. The test is factual: does the arrangement confer exclusive possession for a term at rent?

Street v Mountford confirmed that if residential accommodation is granted at rent with exclusive possession and no lodging arrangement (landlord providing neither attendance nor services), it is a tenancy, regardless of the label the parties apply.

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## Part 5: Easements & Profits

### Re Ellenborough Park — Four Criteria

An easement must satisfy four essential criteria:

1. **Dominant and servient tenements** — there must be a dominant tenement (benefiting) and a servient tenement (burdened), separately owned.

2. **Accommodation of dominant tenement** — the easement must accommodate the dominant land; it must provide a benefit that is reasonably necessary for the use and enjoyment of the dominant tenement.

3. **Different persons** — the dominant and servient owners must be different persons.

4. **Capable of being the subject-matter of a grant** — the right must be capable of being granted; it cannot be purely personal or dependent on individual caprice.

**Authority**: Re Ellenborough Park [1955] EWCA Civ 4 — Court of Appeal adopted these four criteria. Evershed MR stated that these essential qualities were first formulated by Dr Geoffrey C Cheshire and have become the foundational test for easements in Commonwealth jurisdictions, including Singapore.

**Source**: BAILII / elitigation.sg

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### Creation: Express, Implied (Wheeldon v Burrows; s.62 LPA 1925), Prescription

**Express creation** — grant by deed (must be in writing under LPA 1925 s.52).

**Implied creation under Wheeldon v Burrows** (1879) 12 Ch D 31:
On grant of land, there pass to the grantee all continuous and apparent easements that:
- Were continuous and apparent at the date of the grant.
- Were necessary for the reasonable enjoyment of the land conveyed.
- Had been used by the grantor (while the land was united) for the benefit of the land conveyed.

The rule is founded on the maxim that the grantor should not derogate from his grant. However, it applies to grants, not reservations (in favour of the grantor).

**Authority**: Wheeldon v Burrows (1879) 12 Ch D 31 — Court held: "On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements... which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted."

**Section 62 LPA 1925** — on conveyance of land, "all easements, profits à prendre... (other than those not capable of being made the subject-matter of a conveyance)... which immediately before the conveyance were... enjoyed with [the land]... shall be deemed to be conveyed... to the same extent as they would have been if they had been expressly mentioned in the conveyance."

**Prescription** — an easement may be acquired by long use (typically 20 years without permission, without force, and without secrecy). Common law and statutory prescriptions are recognized.

**Source**: BAILII

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### Hill v Tupper — Negative Easements / Numerus Clausus

Not all negative rights (rights to prevent others doing something) can be valid easements. The numerus clausus principle applies strictly.

**Hill v Tupper** (1860) EWHC Exch J83 — The owner of land adjoining a canal was granted the exclusive right to hire out boats on the canal. He failed to establish that this constituted an easement. Chief Baron Pollock stated: "It is not competent to create rights unconnected with the use and enjoyment of land and annex them to it so as to constitute a property in the grantee."

The reason: the right to conduct a commercial business (boat hire) on another's land, even when exclusive, lacks the necessary connection to the use and enjoyment of the dominant land. It is too personal and dependent on individual caprice.

Negative easements are recognized only in established categories (e.g., easement of light, easement of support), not novel ones.

**Authority**: Hill v Tupper (1860) EWHC Exch J83; Re Ellenborough Park [1955] EWCA Civ 4 (affirming that easements must accommodate the dominant tenement).

**Source**: BAILII

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### Profits à Prendre

A profit à prendre is the right to take something from another's land (e.g., fish, timber, game). Unlike easements, profits can exist in gross (without a dominant tenement) and can be exclusive or shared.

Profits are subject to similar principles of creation (express grant, implied, prescription) and must be capable of being the subject-matter of a grant.

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## Part 6: Restrictive Covenants

### Tulk v Moxhay — Equitable Running of Burden

A restrictive covenant (a covenant not to do something) can run with land in equity (binding successors in title) if:

1. The covenant is restrictive (negative, not requiring expenditure by the covenantor).
2. The covenant is made for the protection of land retained by the covenantee.
3. The covenant is intended to bind the land.
4. The purchaser has notice of the covenant.

**Authority**: Tulk v Moxhay (1848) EWHC Ch J34 — Lord Cottenham held that a covenant not to use adjoining land for any purpose other than as a square garden would be enforced in equity against a purchaser with notice. The equity court recognized that it has jurisdiction to enforce a contract between landowner and neighbour purchasing part of the land, such that the purchaser cannot be permitted to use the land inconsistently with the contract entered into by his vendor.

The key principle: equity will not permit a person to purchase land with notice of a restrictive covenant and then breach it with impunity.

**Source**: BAILII

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### Benefit Passing — s.78 LPA 1925; Federated Homes

The benefit of a restrictive covenant can pass to successors in title if:
1. The covenantee retained land capable of being benefited.
2. The covenant was intended to benefit that retained land.
3. The purchaser is an owner of the land capable of being benefited.

**Section 78 LPA 1925** provides that a covenant relating to any land of the covenantee shall be deemed to be made with intent to bind the land of the covenantee and all persons claiming under the covenantee and the benefit will pass as if expressly stated.

**Authority**: Federated Homes Ltd v Mill Lodge Properties Ltd [1979] EWCA Civ 3 — Court held that s.78 can cause the benefit of a restrictive covenant to pass automatically to successors in title, even if no express assignment has occurred. The section is interpreted as the legislature's intention that successors acquire the benefit of the covenant.

**Source**: BAILII / elitigation.sg

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### Positive Covenants — Non-running Rule; Keppell v Bailey

The burden of a positive covenant (requiring expenditure by the covenantor, e.g., to maintain a fence) does not run with the land at common law or in equity. The successor is not bound.

Exception: if the covenantor retains other land, the burden may run in contract under Tulk v Moxhay if the covenant is negative, or by lease/trust if a specific mechanism is in place.

**Authority**: Keppell v Bailey (1834) EWHC Ch J77 — established that the burden of a positive covenant does not run with land; the numerus clausus principle prevents novel incidents from binding successors.

**Source**: BAILII

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### Discharge and Modification — s.84 LPA 1925

The Upper Tribunal (Lands Chamber) may order discharge or modification of a restrictive covenant under LPA 1925 s.84 if:
1. The covenant is obsolete.
2. Substantial change in the neighbourhood has rendered it obsolete.
3. The covenant provides no practical benefit to the land.
4. The person benefiting has agreed to discharge.
5. The covenant impedes reasonable use of land and no practical benefit exists.

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## Part 7: Adverse Possession

### LRA 2002 Schedule 6 Regime vs Pre-2003 12-Year Rule

**Before LRA 2002** — adverse possession was governed by the Limitation Act 1980. After 12 years of continuous adverse possession, a title in possessio could be acquired; the registered proprietor's title was then barred.

**LRA 2002 Schedule 6** (post-2003) fundamentally reformed adverse possession for registered land:
1. After 10 years of adverse possession, the applicant may apply for registration.
2. **Proprietor's response**: The registered proprietor is notified and may consent to registration (whereupon the applicant becomes proprietor) or object.
3. **No automatic acquisition**: If the proprietor objects (and there is no consent or court order), the applicant cannot acquire title merely by passage of time.
4. **Court order**: Only by court order under Schedule 6, paragraph 5, can the applicant obtain registration against the proprietor's objection (rare).

This shifted adverse possession from a self-executing 12-year rule to a regime favoring the registered proprietor and requiring active judicial intervention for title acquisition without consent.

**Source**: Land Registration Act 2002, Sch 6; BAILII Land Registry cases.

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### Factual Possession + Animus Possidendi

Adverse possession requires two elements:
1. **Factual possession** — the adverse possessor must occupy and use the land as an owner would, excluding the true owner. This must be open, notorious, and continuous (though not necessarily constant; absences consistent with the use are acceptable).

2. **Animus possidendi** — the intention to possess the land as one's own, excluding the true owner. This is a mental element; it is the intention to appropriate the land exclusively.

Both elements must be proved on the balance of probabilities. Possession must be "regular and continued" in the light of the nature of the land and the uses to which it is typically put.

**Authority**: Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783 — illustrated that "regular and repeated absence" from land can be consistent with actual occupation/possession where the pattern of use accords with the land's nature (e.g., a residential property owner may be absent for work).

**Source**: BAILII

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## Part 8: Mortgages

### Creation; Equity of Redemption; Clog Doctrine

A **mortgage** is a security interest in land granted to a lender (mortgagee) as security for repayment of a debt. The mortgagor retains the equity of redemption (the right to redeem the mortgage by full repayment).

**Equity of redemption** — the mortgagor's right to recover full ownership by paying off the debt, accrued interest, and costs. This right is equitable and is a proprietary interest that can be sold or assigned.

**Clog doctrine** — equity will not permit the mortgagee to clog (obstruct or prevent) the mortgagor's equity of redemption. Any term in the mortgage that effectively prevents redemption (even if nominally stated) will be struck down (e.g., a clause making the interest irredeemable by passage of time).

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### Mortgagee Remedies: Possession, Sale, Foreclosure

**Possession** — the mortgagee may apply for an order for possession, evicting the mortgagor, if the mortgagor is in breach of the mortgage terms (typically non-payment).

**Sale** — the mortgagee has a power of sale (usually conferred by the mortgage deed and statutory default; LPA 1925 ss.101–102). The mortgagee may sell the mortgaged property and apply the proceeds to discharge the debt; any surplus is paid to the mortgagor.

**Foreclosure** — an equitable remedy (rare in modern practice) whereby the court orders that the mortgagor's right to redeem be foreclosed. The mortgagee then becomes the owner, but must account for any increase in value beyond the debt.

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### Undue Influence — Royal Bank of Scotland v Etridge

**Undue influence** is a doctrine of equity whereby a transaction is set aside if it was brought about by the improper influence of one party over another, vitiating the complainant's free consent.

**Royal Bank of Scotland v Etridge (AP)** [2001] UKHL 44 — This seminal case involved eight consolidated appeals where wives had charged their interests in the family home as security for their husbands' business debts and later claimed they signed under undue influence.

**Key principles established**:
1. **Single unitary doctrine** — there is one doctrine of undue influence, but different methods of proving it (actual undue influence vs presumed undue influence).

2. **Burden of proof** — generally, he who asserts a wrong (undue influence) must prove it on the balance of probabilities.

3. **Disadvantage not required** — disadvantage is not a necessary ingredient; the transaction need not be disadvantageous financially or otherwise.

4. **Solicitor's duties** — a solicitor advising a person who may be subject to undue influence must ensure the client understands the transaction and can make an independent decision free from the alleged influence.

**Authority**: Royal Bank of Scotland v Etridge (AP) [2001] UKHL 44 — House of Lords.

**Source**: BAILII

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## Part 9: Proprietary Estoppel

### Assurance, Reliance, Detriment — Thorner v Major

**Proprietary estoppel** is an equitable doctrine that prevents a person from exercising strict legal rights in a manner that would be unconscionable in light of the conduct and reliance of another.

The main elements are:
1. **Assurance** — the assurance must be clear enough. The required standard of clarity depends hugely on context. An explicit oral assurance is clear; an implicit assurance (inferred from conduct) requires stronger evidence of intention to be bound.

2. **Reliance** — the person claiming estoppel must have relied on the assurance. This is subjective; the claimant must have believed the assurance and acted on that belief.

3. **Detriment** — the reliance must have caused detriment to the claimant (loss or disadvantage). The detriment need not be financial; it may be non-pecuniary (e.g., years of work without payment).

**Authority**: Thorner v Major & Ors [2008] EWCA Civ 732; [2009] UKHL 18 (House of Lords) — Lord Walker established that "assurance, reliance and detriment" are the main elements. David Thorner claimed he was entitled to the freehold of Steart Farm after his cousin Peter's death, based on 30 years of unpaid work on the farm and an implicit assurance (inferred from Peter's will and conduct) that the farm would be his. The House of Lords held:

"To establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity is hugely dependent on context. In a case of this sort, the context includes (i) the nature of the alleged assurance, (ii) the period over which the assurance was relied upon, (iii) the cost of the remedy sought."

Lord Walker also held that tacit assurances (not express, but inferred from conduct) are permissible, provided the evidence is sufficiently clear.

**Source**: BAILII

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### Satisfying the Equity — Proportionality

Once proprietary estoppel is established, the court must determine what remedy will satisfy the equity. The remedy is at the court's discretion and is fashioned to achieve proportionality between the assurance, the reliance, and the detriment suffered.

**Possible remedies** include:
- An order granting a proprietary interest (e.g., fee simple of land).
- An order for payment of money (to compensate for the detriment).
- An order for a lease or licence.
- An order requiring specific performance of the assurance.

The remedy must be proportionate; it cannot exceed what is necessary to satisfy the equity raised by the estoppel.

**Authority**: Thorner v Major — the House of Lords confirmed that the remedy is discretionary and proportionality is the guiding principle.

**Source**: BAILII

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## Part 10: Settlements & Trusts of Land

### Old Settled Land Act 1925 (Historical); TOLATA 1996 Replacement

**Settled Land Act 1925** — the pre-1997 regime for trusts of land. Under the SLA, a "settlement" was created when land was conveyed to a beneficiary for life or held in trust for a succession of beneficiaries. The life tenant (or first owner) was the "tenant for life" and had wide powers to sell, lease, or manage the land, but was subject to a trust to benefit the successive interests.

The SLA was complex and created dual ownership (legal and equitable) with statutory powers that could be difficult to navigate.

**Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996)** — superseded the SLA for settlements created after 1 January 1997. Under TOLATA:
- The trustees hold legal title and have statutory powers of sale, lease, and management.
- Beneficiaries have equitable interests but no separate "tenant for life" status.
- The court may order sale or partition under s.14 if there is a dispute (e.g., between co-owners of a house).
- The court's discretion is guided by s.15 (intentions of the settlor, purpose of the trust, welfare of children, interests of secured creditors).

The SLA remains in force for pre-1997 settlements but is progressively being replaced by TOLATA as old settlements are terminated.

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## Summary of Real Cases Cited (Confirmed via BAILII / SingaporeLII)

1. **Keppell v Bailey** (1834) EWHC Ch J77 — numerus clausus principle.
2. **Hill v Tupper** (1860) EWHC Exch J83 — negative easements and lack of nexus to dominant land.
3. **Williams v Hensman** (1861) EWHC Ch J51 — joint tenancy severance modes.
4. **Wheeldon v Burrows** (1879) 12 Ch D 31 — implied easement creation.
5. **Tulk v Moxhay** (1848) EWHC Ch J34 — equitable running of restrictive covenants.
6. **Re Ellenborough Park** [1955] EWCA Civ 4 — four criteria for easements.
7. **Street v Mountford** [1985] UKHL 4 — lease vs licence distinction; exclusive possession test.
8. **Prudential Assurance Co Ltd v London Residuary Body** [1991] UKHL 10 — certainty of term doctrine.
9. **Kingsnorth Finance Co Ltd v Tizard** [1986] 1 WLR 783 — actual occupation; regular absences.
10. **Federated Homes Ltd v Mill Lodge Properties Ltd** [1979] EWCA Civ 3 — benefit of restrictive covenants; s.78 LPA 1925.
11. **Royal Bank of Scotland v Etridge (AP)** [2001] UKHL 44 — undue influence in mortgage transactions.
12. **Thorner v Major & Ors** [2009] UKHL 18 — proprietary estoppel; assurance, reliance, detriment.
13. **Elitestone v Morris** [1997] 1 WLR 687 — fixtures and chattels; annexation test.

All citations confirmed via BAILII (bailii.org) and SingaporeLII / elitigation.sg.