Saturday, 24 April 2010

A glance at house ownership: what do we actually own?

English Land Law is a fascinating legal topic though it is frequently the bane of the law student's life.  Given the economic importance of land, there is a long line of legal development since (at least) the Norman Conquest of 1066.  People will often say - "I have bought a house" - but it is worth reflecting on what precisely, in law, they have bought. Only the Crown actually "owns" the land and the rights of others are fixed by the type of "estate" and "tenure" which they have.

Alan bought a detached "freehold" house (Freeacre) in Birmingham in 1965.   He is now in his 70s and wishes to "downsize" and has found a small cottage in the Cotswolds where he hopes to spend his remaining years.

In 1965, Alan employed local solicitors to do the conveyancing for him.  They had properly investigated the title to Freeacre and it was conveyed to Alan.  There were title deeds.  In law, what was conveyed to Alan was "a legal estate" in the land referred to as a "fee simple absolute in possession".  This gave Alan the right to live at Freeacre and others could inherit the estate from Alan.  [This is where the importance of making a valid will comes in.  Without such a will the rules of "intestacy" would apply].

Another technical aspect of landholding is "tenure".   Historically, this originated in the "feudal system".  It was of major importance given that it was possible to bind landholders ("tenants") to perform certain duties or services.  Occasionally, such "incidents" of tenure are still found.  Today, the most common form of tenure is known as "socage".  The fact that land is held on a "tenure" can still have some practical consquences but they need not concern us here.  [The Law Commission has deferred work on what it referred to as "Feudal Land Law" until the 11th programme of reform].

The "title deeds" were the documents which demonstrated Alan's rights.  This is known as "unregistered title".   In a process which has been on-going for many years, the unregistered system is being phased out and replaced by a system of "registered title" in which the State guarantees a person's title to land.  [Compulsory registration came to Birmingham in 1966].  Suppose Alan sells Freeacre to Brian.  Alan will prove his entitlement to sell and when the title is conveyed to Brian it will be "registered" with the land registry.  Thereafter the title deeds become redundant since what matters will be the entry on the Land Register.  About 70% of land in England is now subject to registered title and the Land Registry has been trying to persuade people with unregistered title to register voluntarily rather than await a transfer of title - e.g. by sale or by will etc.

See - History of Land Registration
Registered and Unregistered title

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