Real Property Lecture One

Introduction

Real property is often concerned with the rights and liabilities that arise in respect of
immovable property. In a legal sense, land includes not just the soil and things growing
naturally on it, but also building and fixtures erected on it. It is normally subjected to a wide
variety of rights, obligations and interest that would not normally affect pure personalty; this
includes seeking planning permission to develop the land, revenue laws, and requiring payment
of rates and taxes.

The Origins of English Land Law

Land Law in the Caribbean is based on English Land Law, except in St. Lucia, Guyana and
Barbados.1 After the Norman Conquest 1066 the King owned all land in England. He parceled
out land to Barons in return for services. They held the land as long as they provided the
service. Thus they were said to hold based on the concept of tenure. The king was the landlord
and the Baron the tenants-in-chief. The Baron in turn made grants of land until the serfs
(common man) too held land. The theory of land holding under the English system was based
on the concept of tenure, there was no limit on the number of subtenancies, and as a result
innumerable petty Lords sprang up between great barons and the immediate tenant of the soil.
This process was known as the ‘subinfeduation’ persisted for 200 years, but this was eventually
prohibited in 1290 by the statute of Quia Emptores. The effect was that gradually the petty
Lords disappeared from the picture, leaving the actual occupant of the land theoretically
holding directly from the crown, but rendering services to no one, and looking to all intent and
purposes like the absolute owner.

1
In Barbados, s 5(1) of the Property Act, Cap 236, expressly provides that ‘a fee simple in possession is…
equivalent, so far as the law permits, to absolute ownership, and all feudal tenure of the land is hereby abolished.’

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The types of property:

Real property – that is immovable = land. A property right is called a right in rem, a right which
is good against the whole world. Personal Property– property that can be moved. A personal
right is known as a right in personam. A personal right is one which can be established against
some particular person only.
Other classifications of property under the Common Law include: corporeal/incorporeal.
Corporeal property comprises physical objects which can be touched, e.g. land, clothes, tables,
etc. Incorporeal property has no physical existence; it exists only in the eyes of the law.

Another Common Law classification of property is movable/immovable. Immovable

property refers to land and things underneath and attached to it, e.g. fixtures, trees, crops, etc.
Movable property, on the other hand: (1) can lose its identity by destruction; (2) does not have
a permanent location, i.e. it is not stationary, therefore it can be withdrawn from the
jurisdiction of the courts; (3) thus, a dispossessed plaintiff may not be restored to his property;
(4) it can be worn out and torn beyond recognition.

The doctrines of estates

We have seen that according to the theory of

There are four types of estates

The Freeholds
1) Fee simple

This is the closest one can come to actual ownership. A fee simple estate is freely transferrable by inter
vivos disposition or by will. The fee simple is the largest estate in terms of duration. It is granted to a
man and his heirs and will last as long as the person entitled to it die leaving an heir. It may last forever
in the sense that it may never pass to the crown for want of an heir. On the death of the estate owner
the fee simple dissolves according to his will. Where there is no will, it passes to the person designated
by statute as his next of kin; in default of a next of kin, it passes to the crown as bona vacantia. It is the
only legal estate that exists in most Caribbean countries. It is accepted in modern law that a fee simple is
equivalent to permanent ownership of land.

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2) Leasehold Interest – Term of years

This arises where there is a right to possession, use, and enjoyment of a land that has been leased to a
man for a definite number of years, for e.g. one month, one year, 21 years, 99 years or any other certain
period. Since it lacks the requirement of an uncertain duration it is not a freehold. A leasehold may be
carved out of a fee simple estate, so that the fee simple estate owner becomes the lessor (landlord) of
the lessee (tenant); a leasehold may be carved out of a leasehold, in which case the leaseholder
becomes the sublessor (landlord) of the sublessee (subtenant).

3) Life Estate

This estate last for the life of the grantee. Where a life interest is sold it will still come to an end on the
death of the grantee. That estate is called an estate ‘pur autre vie’, an estate for the life of another. A
life estate is normally followed by an estate in remainder. A remainder is an interest a person has after
the life interest dies; it is usually a fee simple. Example of this would occur where, a deceased leaves his
property by will to his widow for life and then to his children or remote issue. A life estate is most times
carved out of a fee simple, it gives the holder the right to use and enjoy the rents, profits and income of
the property until his or her death, when the estate terminates.

4) Fee Tail

This is the only other estate of inheritance. It last as long as the grantee and his direct decendants
survive. The classic formula for its creation is – to A and the heirs of his body. The fee tail exist in most
Caribbean jurisdictions but this is rarely encountered in practice, and even in England no new fee tails
could be created after 1 January 1997.

Legal and Equitable Estates and Interests

A distinction between legal and equitable rights is fundamental to English land law. A legal
estate or interest is one that historically was recognized and enforced by the common law
courts. The contribution of equity, was twofold: a) it recognized rights where none existed
before- in particular, interest under trusts; and b) It developed new remedies where the
common law remedies would be inadequate. In the Commonwealth jurisdictions, the superior
courts are empowered by statute to apply the common law and equitable principles
concurrently.2

In modern land law, equitable interests fall into two categories, as follows.

2
Judicature (Supreme Court) Act, s 48 (Jamaica).

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a. Estates and interests taking effect behind trusts- that is where the legal title to the
property is vested in trustees, holding upon trust for the beneficiaries, who have
equitable interest in the property. Example, where Blackacre is held by trustees ‘upon
trust for X for life, remainder to Y and Z’, X has an equitable life interest, and Y and Z
have a concurrent equitable interest in the fee simple. Equitable interests under trust
are usually encountered in family settlements.
b. Estates and interests created without the necessary legal formalities, which are void at
common law, but which take effect as an equitable interests. Example, equitable leases
or easement arising under Walsh v Lonsdale principle, and equitable mortgages which
arise by deposit of title deeds.
c. Interests created ad recognized by equity, such as restrictive covenants and proprietary
estoppel.

It is important to distinguish between legal and equitable interest because, whereas legal
estates and interest are rights in rem, binding on the whole world, equitable interest suffer
from the infirmity that they are not binding on a bona fide purchaser for value of the legal
estate in the land who has no notice of the existence of the equitable interest. Such a
purchaser will take the land free from equitable interest. Such a purchaser will take the
land, which in effect, will be extinguished.

Equity recognizes three types of notices: (a) actual notice, where the purchaser in fact
knows of the existence of the equitable interest; (b) constructive notice, where the
purchaser ought to and would have acquired notice if he had made due inquiries and
investigated the land and the title; and (c) imputed notice, where the purchaser’s legal
adviser acquires actual and constructive notice of the interest.

A purchaser who is affected by any of these three kinds of notice will be bound by the
existing equitable interest in land.

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THE MEANING OF LAND

There is a general rule of law – quicquid plantatur solo, solo cedit – whatever is attached to the soil
becomes part of the soil. Thus it is important to differentiate between a chattel and a fixture. For the
statutory definition of “land” see s 3 of the Jamaica Conveyancing Act 1889 provides that “land”…
includes… houses and other buildings etc.

Land – the surface of the earth, together with all the sub-adjacent and superjacent

things of a physical nature, eg. buildings, trees, materials.

Chattel – temporary movable objects

Fixture – things affixed to the land or building