Dreptul proprietății
Dreptul funciar, transferul proprietății, închirieri, ipoteci și proprietate intelectuală.
Introducere
Dreptul proprietății reglementează posesia, transferul și utilizarea terenurilor și bunurilor.
Principii fundamentale
Estates in Land — English law recognises two legal estates: the fee simple absolute in possession (freehold) and the term of years absolute (leasehold). All other interests are equitable (Law of Property Act 1925, s.1).
Land Registration — The Land Registration Act 2002 requires most transfers and grants of estates to be registered at HM Land Registry. Registration confers indefeasible title, subject to overriding interests (Schedule 3).
Co-ownership — Land can be held as joint tenants (with right of survivorship) or tenants in common (with separate shares). A trust of land arises automatically under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
Easements — Rights over another's land (e.g. rights of way) can be created expressly, by implication (Wheeldon v Burrows [1879]), by prescription (20 years' use), or under s.62 LPA 1925. An easement must accommodate the dominant tenement and be capable of forming the subject matter of a grant (Re Ellenborough Park [1956]).
Covenants — Restrictive covenants (negative obligations) can bind successors in equity if they 'touch and concern' the land and the purchaser has notice. Positive covenants do not bind successors at common law (Austerberry v Oldham Corporation [1885]), though workarounds exist.
Mortgages — A mortgage is a security interest in land. The mortgagee has rights of possession, sale (s.101 LPA 1925), and to appoint a receiver. The mortgagor retains an equitable right to redeem (equity of redemption). Unfair terms may be struck down (Cityland v Dabrah [1968]).
Adverse Possession — Under the LRA 2002, a squatter can apply for registration after 10 years' adverse possession, but the registered owner is notified and given 2 years to object (a significant change from the 12-year rule under the Limitation Act 1980 for unregistered land).
Landlord & Tenant — Leases must have exclusive possession, certainty of term, and the correct formalities (Street v Mountford [1985]). Statutory codes protect residential tenants (Housing Act 1988, Landlord and Tenant Act 1985) and commercial tenants (Landlord and Tenant Act 1954, Part II).
Statute cheie
Law of Property Act 1925
Land Registration Act 2002
Trusts of Land and Appointment of Trustees Act 1996
Landlord and Tenant Act 1985
Housing Act 1988
Cazuri de referință
Pye v Graham
[2002] UKHL 30
Scenarii comune
Neighbour builds a fence blocking your right of way
If an easement (right of way) has been properly created — expressly by deed, by implication, or by prescription (20+ years of continuous use) — the neighbour cannot obstruct it. Remedies include injunctions and damages. The easement must be registered or qualify as an overriding interest to bind the neighbour.
Buying a house and discovering a restrictive covenant
A restrictive covenant registered against the title binds all successors. Before purchasing, a buyer should check the charges register. If the covenant is obsolete, an application can be made to the Upper Tribunal (Lands Chamber) under s.84 LPA 1925 to modify or discharge it.
Landlord refuses to return your deposit
Under the Housing Act 2004, assured shorthold tenancy deposits must be protected in a government-approved scheme within 30 days. Failure to protect the deposit entitles the tenant to compensation of 1–3 times the deposit amount and prevents the landlord from serving a valid s.21 notice.
Unmarried partner claims share of the house
Where property is in one partner's name, the other may claim a beneficial interest under a common intention constructive trust (Lloyds Bank v Rosset [1991]) or proprietary estoppel. Stack v Dowden [2007] and Jones v Kernott [2011] guide the quantification of shares based on the parties' shared intentions.