Structure of Real Property Law

• Pages: 1-13

CHAPTER 1

STRUCTURE OF REAL PROPERTY LAW

Land law (the ‘law of real property’) is concerned with the rights and liabilities that

arise in respect of immovable property. In its legal sense, ‘land’ includes not just

the soil and things growing naturally on it, but any buildings and fixtures erected

thereon. It is a peculiar feature of land that, being immovable and indestructible, it

is normally subject to a wide variety of rights, obligations and interests that would

not normally aect pure personalty. If X is the owner of a gold watch, it is unlikely

that any person other than X will have any right or interest in the watch, nor will X

be restricted in his enjoyment of the watch; he may simply use it until it wears out,

or until he decides to give it away to someone else. Similarly, if X is the owner of a

car, the only other ‘person’ who is likely to have any right or interest in the car is the

finance company (if it has been bought on hire purchase), and X’s only obligations

in relation to the car will be to insure it, license it, and drive it with due care. On the

other hand, if X is the ‘owner’ of land, there will invariably be several other persons

having rights over the land, and he will be burdened with a number of restrictions

and obligations (called ‘incumbrances’) in respect of it. For instance, it is likely that

he will have mortgaged it to a bank as security for the loan of the purchase money;

that a neighbour, Y, will have a right to run his drains under part of it and to have

access over a pathway on it; that the land will be burdened by restrictive covenants

prohibiting X and his successors from, for example, sub-

dividing the land or using

it for a trade or business; and that, if the land is let to a tenant, X will be excluded

from possession until expiry of the lease. Furthermore, the ‘ownership’ of the land

may be fragmented. For instance, X may have inherited the land under the will or

intestacy of a deceased relative in common with his two brothers, P and Q, so that

the land will be ‘co- owned’ by all three, who will have equal rights to enjoy it. Lastly,

X, as ‘owner’, will be subject to town and country planning legislation, which will

require him to seek planning permission to develop the land, and to revenue laws,

requiring payment of rates and taxes.

ORIGINS OF LAND LAW

The land laws applicable in Commonwealth Caribbean jurisdictions are derived

from English common law and, in Guyana and StLucia, also partly from Roman–

Dutch and civil law respectively. The theory of landholding under the English sys-

tem was based on the concept of ‘tenure’. Under the feudal system, introduced into

England by the Normans after the conquest of 1066, all land belonged to the king,

who granted possession of areas to certain barons (his ‘tenants- in- chief ‘) in return

for services, such as the provision of soldiers for the king’s army. These barons in

turn granted possession of land to lesser lords, in return for services, and the lords

themselves granted subtenancies to others. There was no limit to the number of

subtenancies that could be granted and, as a result, ‘innumerable petty lords sprang

up between the great barons and the immediate tenant of the soil’.1 This process,

1 Hayes, Introduction to Conveyancing, Vol1, p 9.

DOI: 10.4324/9781003186946-1