Principles of Land Law

Introduction

Introduction

Topics

1. Why land law and what is it?

2. Sources of Hong Kong Land law

3. Estates and tenure

4. Proprietary interests

5. Equity

6. The ‘land’ in land law

1. Why land law and what is it?

Career

As landowner (now or later)

Close to daily life

What does land law study?

Range of possible interests in land

How competing interests interact

Creating, transferring, protecting and ending interests in land

Several interests in the same piece of land

Apartment owner

Lender / mortgagee Tenants Licensees

2. Sources of Hong Kong Land Law

English common law and equity as received in Hong Kong

Statute

Judicial decisions

Chinese customary law

3. Estate and tenure

Tenure

Estate: freehold or leasehold

4. Proprietary interests

‘Proprietary’: something you own

The proprietary / non-proprietary dividing line in land law

Proprietary interests bind third parties

The lease is proprietary

So is the mortgage

Some interests are proprietary but cannot exist on their own

They have to be attached to another proprietary interest such as a lease or a mortgage

Examples

Easements

Land covenants

The proprietary / personal divide

Lease v licence

But the distinction can be difficult and ‘blurry’

5. Equity

Equity moderates the harshness of the common law

Equity: focuses on what is ‘conscionable’

The trust

The Express Trust

Settlor Trustee

Beneficiary

The trustee owns the property but is expected to look after it on behalf of the beneficiary

The trustee is the ‘legal’ owner

The beneficiary is the equitable or beneficial owner

Ownership has been split up into legal and equitable titles

Other types of trust

Resulting trusts

Constructive trusts

Resulting and constructive trusts

A

B

A owns the legal titlebut B has an equitableinterest

Legal and equitable ‘versions’ of interests in land

Equitable interests in land: use of a contract rather than a deed

Equitable interests can arise out of proprietary estoppel

Proprietary estoppel: you promised to create or transfer an interest in land

Not a contractually binding promise

But promisee has relied on it and unconscionable to allow promisor to go back on the promise

Example of an equitable lease

Larry

Teresa

Binding agreement for a six year lease but failure to comply with common law formalities for the grantof a lease: Teresa has an equitable lease.

A legal interest is good against the whole world

An equitable interest is good against the whole world except equity’s darling

Provided the equities are equal

Equitable interests and third parties

Polly v Teresa

Larry

Teresa

Larry sells to Polly who can take free of Teresa’sequitable interest.

Polly

Other influences of equity on land law

Specific performance

Equity of redemption

6. The ‘land’ in land law

Statutory definition of land – s. 2 CPO

‘land’ includes - (a) land covered by water;(b) any estate right interest or easement in or over land;(bb) the whole or part of an undivided share in land and any estate, right,

interest or easement in or over the whole or part of an undivided share in land; and

(c) things attached to land or permanently fastened to anything attached to land.

The contract or deed should describe the relevant land clearly

At common law ‘land’ includes everything above and below the surface

Fixture or chattel?

Degree and purpose of annexation

Elitestone Ltd v Morris: part and parcel of the land

Topics

1. Why land law and what is it?

2. Sources of Hong Kong Land law

3. Estates and tenure

4. Proprietary interests

5. Equity

6. The ‘land’ in land law