Real property is subject to a unique set of laws and regulations, which govern the ownership, transfer, and use of land. These laws include laws related to property ownership, land use, zoning, and environmental protection. Real property is typically transferred through a conveyance, which is a legal document that transfers ownership from one person to another. 

Personal property is subject to a different set of laws and regulations than real property. These laws include laws related to ownership, transfer, and use of personal property, such as laws related to contracts, sales, and leases. Personal property is typically transferred through a bill of sale, which is a legal document that transfers ownership from one person to another. 

The equitable charge 

The equitable charge is similar to a trust. An equitable charge is a form of security that allows the creditor (chargee) to order the sale of the property, after a triggering event, like default of payment. The proceeds of sale can then be used to satisfy amounts due to the charge. 

An equitable charge is created when property is expressly or constructively made liable, or specially appropriated to the discharge of a debt without there being any intention to transfer ownership of the property. In the event of non-payment of the debt, the creditor’s right of realisation is by judicial process i.e. by the appointment of a receiver or an order for sale. 

• An equitable charge may be in writing but is usually created by deed. 

• Section 53(1) LPA requires a disposition of an equitable interest or trust subsisting at the time of the disposition to be in writing signed by the person making the disposition or by his agent or by will. 

• Equitable charges can be created expressly, as in the case of a Charging Order made by a court securing a judgment debt against the debtor’s property. 

Restrictive covenants 

While the law will enforce this promise against the original buyer (the covenantor), if he then sells the property, the law would not be able to enforce the covenant against the new purchaser, because he was not a party to the original contract (the so-called “privity of contract” rule). 

Equity, however, may allow the passing of the burden of the covenant to a stranger to the original arrangement, so as to enforce the covenant against the new purchaser. 

Equity acts on the conscience and would, therefore, rule that a purchaser should be bound by a covenant which he knew about, when he originally bought the property. In other words, a restrictive covenant cannot exist as a legal interest in land; it will always be an equitable interest. 

Interestes in land

Interests that can only be protected by agreed notice 

Where the applicant is unable to obtain the consent of the registered proprietor, the applicant may prefer to apply for a unilateral notice. He can then be confident that the interest claimed will be protected from the date of his application (whereas to apply for an agreed notice would run the risk that his application would be cancelled, leaving the priority of his interest unprotected until he could re-apply for a unilateral notice). There may be other reasons, as well, why an applicant might choose to apply for a unilateral notice, e.g. any instrument that gives rise to the interest claimed must be lodged with an agreed notice application and thus made available for public inspection – whereas by applying for a unilateral notice, the applicant can ensure that the terms of a confidential document are kept out of the public domain. 

While in most cases the applicant may decide whether to apply for an agreed notice or a unilateral notice, in respect of any of the following interests an applicant may only apply for an agreed notice (rule 80 of the Land Registration Rules 2003). They are: 

✓ home rights 

✓ an HM Revenue & Customs charge in respect of a liability for inheritance tax 

✓ an interest arising pursuant to an order under the Access to Neighbouring Land Act 1992 

✓ a variation of a lease effected by or under an order made under section 38 of the Landlord and Tenant Act 1987 (including any variation as modified by an order under section 39(4) of that Act) 

✓ a public right 

✓ a customary right (a customary right is one that is enjoyed by some or all of the inhabitants of a particular locality) 

co-ownership 

 Joint tenancy occurs when two or more people, also known as ‘joint proprietors’, have identical interests in the whole of the land. Each co-owner is not regarded as having a “share” (i.e. a separate ownership), in the land – but as together owning the whole estate at law and in equity. 

 The joint legal ownership of the land means that both parties own the entirety of the property and cannot individually own a specific percentage share. They are treated as a single entity in the eyes of the law, so any actions taken by one of them towards a third party are considered to have been done by both individuals. There is no division or separate interests in the land. 

Furthermore, before a joint tenancy can exist, the ‘four unities’ must be present; 

1. Unity of possession: the occupants must possess rights over the same piece of property. 

2. Unity of time: the occupants’ rights must have arisen at same time (e.g., in a disposition “to A for life and then to B and C” – B and C have the unity of time, because the interest to each vests on the death of A). 

3. Unity of title: the occupants’ rights must have arisen from same transaction (i.e. from a single agreement). 

4. Unity of interest: the occupants must have a single set of legal rights/obligations (e.g. they must be jointly liable for the rent). 

 A tenancy in common can only exist in equity. Thus, a tenancy in common simpy provides an alternative way in which co-owners can hold the beneficial (equitable) interest in their property i.e. instead of holding the beneficial interest as joint tenants, the beneficial interest may be held by legal co-owners as tenants in common. 

 Each co-owner may sell or dispose of his notional share of the property (e.g. one half or one quarter) by will, and a share does not pass automatically to the other co-owner on the death of one co-owner by the right of survivorship, but will form part of his estate. 

 However, the share is an “undivided share”, and until partition or sale occurs, all the tenants in common are entitled to possession of the whole. 

Note: None of the four unities (except unity of possession), are necessary in a tenancy in common. However, the other three unities may be present anyway. 

The doctrine of survivorship

·       The sole surviving tenant could apply to the Land Registry to remove the deceased’s name from the Register using Form DJP (Deceased Joint Proprietor)

·       The surviving tenant will be able to sell the property or dispose of it as he pleases on his will after his death

Execption to the right of survivorship;

The doctrine of survivorship will not apply where one joint tenant is responsible for the other’s death (Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147).

the circumstances that may present an equitable presumption against a joint tenancy:

ü   “Words of severance” have been used to describe the division of the equitable ownership.

ü  Either of the parties has made an unequal contribution towards the purchase price of the property.

ü  Other persons have made contributions towards the purchase price of the property.

ü  Property is held by a business partnership.

ü  Property is intended for investment or business purposes.

Property is a security for the payment of mortgage.

·       If the co-owner of a tenancy in common dies and the surviving owner does not consent to the beneficiary of the deceased being added to the property’s ownership records, the beneficiary can take steps to protect their interest in the property.

·       This may include requesting a restriction be placed on the property’s title to prevent the surviving owner from selling it without the beneficiary’s knowledge or payment of their share.

·       If the property is sold after the death of one of the owners, a second trustee will need to be appointed to manage the sale and ensure the beneficiary’s share is properly paid.

·       The trust established through this process will attach to the sale proceeds and the purchaser will take ownership of the property free from any trust.

A tenancy in common ends when either:

ü  all the co-owners sell the property (with all their shares) to someone else;

ü  all the co-owners convert to a beneficial joint tenancy; or

One owner acquires all the shares in the property from the other co-owners.

The right to light

Þ    A right to light is an easement that gives a landowner the right to receive light through defined apertures in buildings on their land. It enables the dominant owner to prevent the obstruction of light by the servient owner.

Þ    The right to light does not grant the right to the maximum amount of light possible through a window. Therefore, not every obstruction of light, even if it is minor, violates this right.

Þ    The owner of the dominant property is entitled to enough light for the comfortable use and enjoyment of their property, considering both its current and potential future uses. If the owner of the servient property blocks the light and the amount of light received falls below a sufficient level, it will be considered a nuisance.

interrupt the enjoyment of light without the need for a physical obstruction

Þ    The Rights of Light Act 1959 allows for the obstruction of light without the need for a physical object, such as a wall, through the creation of a virtual obstruction.

Þ    The owner of land through which light passes to a building can request the registration of a light obstruction notice in the Local Land Charges Register through the Lands Chamber or the Land Registry, starting on April 12, 2015.

Þ    Once approved, the notice remains in effect for one year from the date of registration. During this time, the access of light to the building covered by the notice is treated as if it were physically obstructed when determining if someone has a prescriptive right to light.

Þ    The dominant land owner has one year to challenge the light obstruction notice in court after it is registered.

The Prescription Act 1832 provides for the creation of a right to light where light has been enjoyed for the period of 20 years without interruption before a claim to the easement is made. Only the interruption of the light for a period of one year or more, or the written consent or agreement of the servient owner to the use of the light will prevent the right being acquired; otherwise, the right will be deemed “absolute and indefeasible”. Unlike the two other methods of prescription, there is no need for the use to be “as of right” (in other words, as if a lawful easement existed); one effect of this is that, unlike any other easement, it is possible for a tenant to acquire a right to light by prescription against his or her own landlord.

Note:

To be effective, an interruption must continue for at least a year. This has a technical meaning – non-use for less than one year does not count as an “interruption”.

This leads to the well-known but strange result that prescriptive use for 19 years and one day will almost certainly guarantee the user an easement, on the basis that the servient owner is unable to prevent the use by interruption, provided that the “suit or action” to claim the easement is brought on the twentieth anniversary of the commencement of the use.

Note:

Only easements created by statute, deed or prescription, and held on terms “equivalent to a fee simple absolute in possession” (i.e. effectively forever) or “term of years absolute” (i.e. for a fixed period), including implied easements, qualify as legal easements. All other easements will be equitable.

How could a “right to a fair view” be protected using an easement?

An easement cannot be used to safeguard the right to a fair view because the right must be clearly defined and specific in terms of the parties and the land involved, which may or may not be recorded in a deed. However, a right to a fair view is subjective and cannot be accurately described in a deed.