Land Law

Citation

Cooke, E. (2020). Land Law (3rd ed.). Oxford University Press. Clarendon Law Series.

Chapter Summary

The book is a volume in OUP's Clarendon Law Series, which the publisher describes as written "as a letter to a friend", with a minimum of footnotes and statutory material. The third edition has nine chapters and about 265 pages of text. Its author qualified as a solicitor, taught at the University of Reading, served as the Law Commissioner for England and Wales responsible for property, family and trusts law from 2008 to 2015, was Principal Judge of the Land Registration Division of the First-tier Tribunal (Property Chamber) from 2015 to 2019, and has since sat as a judge of the Upper Tribunal (Lands Chamber). The new edition takes in recent Court of Appeal and Supreme Court decisions and Law Commission reform proposals. Two themes run through the book: the management of complexity, and the tension between static security (protecting those who already hold rights) and dynamic security (protecting those who buy).

Chapter 1: What is Land Law?

The opening chapter asks what property, real property, land and property rights are, works from the statutory definition of land in the Law of Property Act 1925, and considers the effect of the European Convention on Human Rights through the Human Rights Act 1998. It introduces the book's themes, presenting land law as a contest between competing categories of rights and competing values.

Chapter 2: Property Rights in Land

Here the feudal origins of tenure and estate are explained, together with freehold, leasehold and commonhold ownership, the beginnings of the distinction between law and equity, and the rise of the trust as a way of organising entitlement to land. Rights short of ownership are introduced, and the pre-1925 rules on the enforceability of legal and equitable rights are set out to prepare for the next chapter.

Chapter 3: Land Law and Registration Today

The longest of the early chapters explains how the 1925 legislation tackled complexity by redefining legal and equitable estates and interests, how enforceability was managed (with a central role for the trust), how the law has dealt with hidden, undocumented ownership rights, and the idea of indefeasibility in registered land. It ends with the Law Commission's project, begun in 2014, on the working of the Land Registration Act 2002, and the 2018 report and recommendations that came out of it.

Chapter 4: Creating and Acquiring Interests in Land: Words and Intentions

This chapter covers the formalities for contracts and transfers, writing and deeds, and the move towards electronic conveyancing; then the informal routes around the formality rules, introducing resulting and constructive trusts and proprietary estoppel. It closes with the particular difficulties of family property.

Chapter 5: Joint Ownership of Land

Shared ownership is examined through the trust of land: the family, business and succession settings in which it arises, joint tenancy and tenancy in common and how to tell them apart, severance, and the Trusts of Land and Appointment of Trustees Act 1996. Disputes and bankruptcy are considered, and the chapter returns to static and dynamic security, including the use of restrictions on the register to protect unregistered ownership interests.

Chapter 6: Mortgages

The mortgage is explained as a security interest, with its current forms, the rights and remedies of borrower and lender, and the courts' intervention in the contract largely to protect the borrower. Protection for homeowners and for third parties affected by a mortgage is discussed, and the chapter ends with pressure and undue influence.

Chapter 7: Leases, Licences, and Commonholds

The chapter distinguishes leases from licences, explains commonhold as an ownership structure for interdependent properties that tackles the imbalance of power between landlord and tenant, and covers types of lease, certainty of term, creation and registration, leasehold covenants, remedies and the transmission of liability, termination, and the statutory regimes of security of tenure and leasehold enfranchisement.

Chapter 8: Appurtenant Rights

Easements, profits à prendre and covenants are treated together: the nature and creation of easements (including implication and prescription), how they end, positive and restrictive covenants and the complex rules on their enforceability, discharge or modification under section 84 of the Law of Property Act 1925, and the Law Commission's reform proposals.

Chapter 9: Whatever Happened to Relativity of Title?

The final chapter deals with relativity of title and adverse possession, once fundamental and now much less important where title is registered under the 2002 Act. It explains the requirements for adverse possession, the human rights case law on squatters' titles, the position in registered land, and why the concept remains live, ending with an assessment of the 2002 Act's impact.

Key Concepts

Foundations (Chapters 1–3)

• Static and dynamic security: the competing claims of existing rights holders and of purchasers, a theme of the whole book.
• Tenure and estate: the feudal concepts from which modern ownership of land descends.
• Law and equity: the two sources of property rights, and the trust that grew out of equity.
• Indefeasibility: the protection that registration gives to a registered title.

Acquiring and sharing land (Chapters 4–5)

• Formality and its exceptions: writing and deeds, and the routes of resulting and constructive trusts and proprietary estoppel.
• Trust of land: the structure through which English law manages joint ownership.
• Joint tenancy, tenancy in common and severance: the two forms of co-ownership and the conversion of one into the other.

Rights in and over land (Chapters 6–9)

• Mortgage as security: a property right securing a debt, with protections for the borrower.
• Lease and licence: the line between a property right and a personal permission.
• Commonhold: an ownership structure for interdependent properties.
• Appurtenant rights: easements, profits and covenants that benefit one piece of land over another.
• Relativity of title and adverse possession: the older logic of title and how registration has reduced its role.

Critical Analysis

Strengths

• A connected account, not a manual. The book sets out to show how the parts of land law fit together, around the stated themes of complexity and of static versus dynamic security, which Chapter 5 brings back explicitly, so the reader is given a way to judge the rules as well as learn them.
• Brevity. Nine chapters and about 265 pages cover the core of a land law course, from the 1925 legislation to adverse possession, so the whole subject can be read early in a course.
• An author close to the system. Cooke's experience as Law Commissioner for property law and as a judge in land registration matters is reflected in the attention to the Law Commission's 2018 report on the 2002 Act and to its reform proposals for easements and covenants.
• Unusual organisation. Grouping easements, profits and covenants as appurtenant rights, and placing formality, informal trusts and estoppel in one chapter, helps the reader see related doctrines side by side.

Limitations

• Not a course textbook. The Clarendon style means few footnotes and little statutory text, and the publisher's description mentions none of the problem questions or learning features of a teaching text. Students still need a textbook or a cases-and-materials book for authority and practice.
• Compressed treatment. Topics that fill several chapters elsewhere share one chapter here: leases, licences and commonhold in Chapter 7, and easements, profits and covenants in Chapter 8. Detail on each will be limited.
• Edition date. The third edition dates from 2020; later case law and the progress of the Law Commission's proposals must be checked elsewhere.

Where It Fits in the Course

This is the short, essay-style overview among the land law books in the course. Clarke and Greer's Land Law Directions is a full introductory textbook with diagrams, case summaries, end-of-chapter questions and exam advice, and Martin Dixon's Modern Land Law is a concise narrative textbook with worked examples; either can serve as the main text, with Cooke read early for the overall shape of the subject or later to pull the topics together. McFarlane, Hopkins and Nield's Land Law: Text, Cases, and Materials supplies the extracts from judgments, statutes and scholarship that Cooke's format leaves out.

At the scholarly end, Gray and Gray's Elements of Land Law combines a detailed account of estates and interests with reflection on the concept of property and comparative material, and Megarry & Wade: The Law of Real Property is the detailed treatise on the modern law with its historical background. Cooke's themes, especially static versus dynamic security, are a good preparation for reading either.

How to Use This Book

The book is written for readers coming to land law for the first time: law undergraduates at the start of a land law or property module, conversion students, and readers who find the details hard to hold together. A basic knowledge of the English legal system and of what a trust is helps, though Chapter 2 introduces the trust.

A practical plan:

• Before or at the start of the course: read Chapters 1–3 in one or two sittings. They give the history, the 1925 framework and the registration system that every later topic depends on.
• Topic by topic: read Chapter 4 before the lectures on formalities, trusts of the family home and estoppel; Chapter 5 with co-ownership; Chapters 6–8 with mortgages, leases and easements and covenants; Chapter 9 with adverse possession. Then turn to the course textbook for the case law and to practise problem questions.
• For revision and essays: reread the whole book near the end of the course. Its themes give a ready framework for essay questions about the purpose of registration, the protection of occupiers and the case for reform.

Track the reform proposals the book discusses, such as the 2018 report on the Land Registration Act 2002, and check what has happened to them since 2020.