1.A.1 Adverse possession
Adverse possession is the possession of land as a trespasser or squatter.
A trespasser or squatter can gain the right to possession after a statutorily prescribed period of limitation. The owner or person who has the right to possess the land can recover possession from a trespasser or squatter but the principle of limitation restricts this in time. In most countries the relevant period of limitation will be statutorily defined.
1.A.2 Alienation
Alienation is the transfer of ownership of land.
The owner of a freehold (fee simple absolute) under the English legal system has the right of alienation of the property during lifetime or by will after death. This means that the owner can transfer ownership of all or part of the property as he or she wishes, whether by sale or by gift.
In some traditional societies where there has been limited experience of land markets, the concept of alienation of land may not exist. Land may be conceived of as being held by those currently living in trust for their ancestors and those yet unborn. The act of permanent alienation is against this fundamental link between people and the land. In several such societies, pressures for alienation through the commoditisation of land have led to complications over who has the right to alienate the land. Acommon approach in the past to enable restricted dealings with such land, and yet to retain its essential inalienable nature has been through establishing appropriate customary practices or, in some cases, to create statutory trusts for land administration purposes. These trusts usually have rights to deal with such land in limited ways, thus trying to satisfy the traditional and the market economy oriented members of society.
1.A.3 Ancient lights / Right of light
A right of light, “ancient lights” consists of the right of the dominant tenement to sufficient light through defined apertures “according to the ordinary notions of mankind”.
CARD, R., MURDOCH, J., SCHOFIELD, P., 1994
Ancient lights can only exist as an easement. The servient tenement cannot obstruct this right and thereby reduce the amount of light received. The rights to this easement may be created expressly or by implication, although most are acquired by prescription
The quantum of light required may vary according to the established use of the building in question. Industrial buildings, residential buildings and greenhouses have all been held to have different established requirements.
1.A.4 Assignment
An assignment is the transfer of a lease from the tenant to another party.
A tenant may be able to assign a lease to another party, although this right of assignment is likely to be constrained or prohibited by the terms of the lease agreement. By assigning the lease, the tenant transfers the entire remaining interest to another. This puts the new tenant, the assignee, in the same position vis-à-vis the landlord as the previous tenant.
A tenant has potentially very considerable rights of assignment and enjoyment associated with the leasehold interest that he or she enjoys, unless restricted by the terms of the lease. In circumstances where the tenant no longer wishes to hold the property there may be three choices available; assignment, sub-lease or surrender.
1.B.1 Beneficiary / Grantee
Attributaire (F); Asignatario / Adjudicatario (E)
A beneficiary is someone who derives advantage from something. A beneficiary under a will or a trust, for example, is someone who will have an interest under the will or trust.
1.C.1 Collective ownership
Propriété collective (F); Propiedad colectiva (E)
Collective ownership of a natural resource is where the holders of rights to a given natural resource are clearly defined as a collective group, and where they have the right to exclude third parties from the enjoyment of those rights. Acollective farm such as the kolkhoz of the former Soviet Union involved a number of households working together in agricultural production.
1.C.2 Common property
Biens communaux (F); Bienes comunitarios (E)
Common property is typically land and other resources in which entitled beneficiaries, whether individual or community defined, have specific common rights. For example, community members can use a common pasture for grazing their cattle independently of one another. The community controls the use of the common property and can exclude non-members from using it.
Common property in this sense is distinct from “open access systems” where there is no control on access and no-one can be excluded.
1.C.3 Common rights
Common rights are rights held in common property.
1.C.4 Commons
Bien commun (F); Bien común (E)
The term “commons” is most frequently used to refer to those natural resources that are held in common by a community.
1.C.5 Communal ownership
Propiedad comunal (E)
“Communal ownership” is a commonly used term to describe those situations where rights to use resources are held by a community. It often includes communal rights to pastures and forests, and exclusive private rights to agricultural and residential parcels. In such community-based tenure regimes, people may not have the right to transfer their land to others, or may have strictly limited rights to transfer (e.g., transfers may be limited to heirs through inheritance, or sales may be restricted to members of the community.)
1.C.6 Concession
Concession (F); Concesión / Concesión inmobiliaria (E)
A concession is defined as the granting of a territory to a concessionaire for their occupation and use.
A “concession” is not a property right in English land law. There are, however, certain situations in some jurisdictions with an English law background where concessions are granted. It is common, for example, for oil and gas exploration and production licences in the UK and the US to be referred to as concessions, although both legally and in documentary terminology are licences.
|
Concessions are granted in Fiji by the Native Land Trust Board for large scale indigenous forest exploitation. Since 1980 these long term concessions have included base annual rental payments, plus royalties based on the actual volume of timber extracted. |
1.C.7 Conservation easement
Conservation easements are partial interests in land designed to prevent development on conservation land.
Conservation easements have been developed principally in the US to protect land areas important for environmental reasons from development. They are typically long term, for example, 30 years, and are acquired in private land by government agencies and non-profit organisations for conservation purposes. They are typically negative, prohibiting certain actions, and are held “in gross”, rather than “appurtenant” as the right is not held in respect of neighbouring property. They represent a market-oriented approach to conservation where a landowner gives up development rights over a specific area in return for a payment. WEIBE, K., TEGENE, A., KUHN, B., 1996
1.C.8 Contract
Contrat (F); Contrato (E)
A contract is a binding agreement on the parties to the contract.
For a contract to exist there must therefore be an agreement, and it must be intended by the parties that this agreement should be legally binding. The agreement must also be supported either by a deed or by consideration. Consideration is a promise or an act made by the promisee in return for the promisor’s promise at the latter’s express or implied request.
Most transactions in land comprise two stages. The first of these is a contractual stage where the parties formally agree the basis and terms of the bargain (contract). Up to the point of such agreement, negotiations will generally be flexible and offer and counter-offer made specifically “subject to contract”. When the contract has been agreed, the second stage is the transfer or creation of the interest in land. Under some registration systems, transfer takes place on registration, and not on the execution of the contract.
1.C.9 Conveyance
The conveyance of land is the actual process of transfer of that land. A conveyance is a deed transferring land.
The legal definition of what is included in land is important as this governs what is conveyed. Fructus industriales (cultivated crops), for example, are typically excluded from a conveyance, but naturally growing things, fructus naturales, will be included. The procedures for conveyance vary according to the jurisdiction and according to the legal system for recording and transferring ownership.
|
Examples of the process of conveyance in a title registration regime include:
Where the land being conveyed is registered, the register of title maintained by HM Land Registry will be relied on, together with any further particulars arising from questions relating to the title. An official search of the register will generate an official certificate of search. This certificate provides a definitive statement of title and confers a priority period of 30 days from the date of application. The transaction should be completed and the purchaser should apply to be registered as proprietor during this period. It is this registration as proprietor in the Land Registry that vests in the purchaser the legal estate. The purchaser is indemnified against any error in the official search. Where unregistered land is being conveyed the process is complicated by the need for the demonstration of a good root of title. This requires a clear tracing of all of the dealings in the land until the time of transaction for a period of at least 15 years. In this case, the completion takes place when the conveyance deed is completed and the purchase consideration paid, when the legal title passes to the purchaser. All sales of freeholds are now compulsorily registered, and the purchaser must apply for first registration to HM Land Registry within two months of completion, otherwise the legal estate reverts to the vendor. |
1.C.10 Co-ownership / Undivided shares
Copropriétaire (F); Copropietario / Comunero (E)
Co-ownership is where two or more people have ownership together of a freehold or leasehold interest. The enjoyment of a property in co-ownership is said to be in undivided shares, in that each person has the same right to any part of the property.
There are two forms of co-ownership; joint tenancy and tenancy in common.
A joint tenancy exists where there is:
> right of survivorship (on the death of a joint tenant their right passes to the remaining joint tenants, until only one remains as the sole owner)
> unity of possession (no joint owner can exclude another)
> unity of interest (each joint tenant is jointly entitled to the entire interest in the property)
> unity of title (all joint tenants in a property derive their title under the same document)
> unity of time (all joint tenants’interests must commence at the same time.
With a tenancy-in-common, by contrast, there is no right of survivorship as each tenant-in-common has a fixed, although undivided, share that at death can, for example, be passed on by will to any designated successor. Unity of possession is a characteristic requirement of tenancy-in-common and although usually present, the other unities are not essential.
1.C.11 Custom / Use / User
Coutumes / Coutumier (F);
Costumbres / Consuetudinario (E)
Custom results from practice since time immemorial.
Use rights can be created in land on the basis of custom. These rights are often created by the use of the land over a long period of time.
They are often the rights created by ancestral occupation and use of land by traditional societies. The creation and recognition of boundaries where these exist for such land will often use natural features, or planted trees or hedges.
Although custom and customary use rights are most frequently associated with traditional societies, western societies may also recognise such rights.
|
Examples of customary use right in a traditional society include:
Examples of the recognition of a customary use right in a western society include:
|
1.D.1 Deed
A deed is a written or printed instrument that effects a legal disposition such as a contract for sale.
Traditionally under English law a deed was a document that was “signed, sealed and delivered”. Since 1989 these requirements have been relaxed, with the removal of the requirement to seal a deed. It must be clear that the document is intended to be a deed. For the deed to be executed it now requires simply to be signed the individual party to the deed in the presence of two witnesses who attest the signature. The process of delivery now no longer has to be a physical delivery, it is enough that there are acts to show that the maker of the deed intends to be unconditionally bound by it.
1.D.2 Dominant tenement
A dominant tenement is a property that enjoys the benefit of a right of easement. An easement often requires that there should be a dominant tenement that enjoys the right of easement, such as a right of way, over a servient tenement.
1.D.3 Dowry
Dot (F); Dote (E)
A dowry is the property that forms a part of a marriage agreement. The dowry is traditionally the property provided to the marriage by the family of the bride. The practice remains an important part of some cultures, particularly those that are based in the East.
1.E.1 Easement
Easements are rights exercisable by owners of one parcel of land over other land.
Easements fall into two groups, positive and negative. Thus easements include those where someone has a positive right to do something over another person’s land, such as exercising a right of way, and those where an owner has a right to stop someone doing something on their land, such as a right to light (ancient lights).
The creation of an easement often requires that there should be a dominant and a servient tenement. There should in other words be land that benefits from the easement, and land that provides the easement; the owners of the two tenements should be different. It is also important that the easement is capable of being the subject of a grant.
In some cases, such as with a conservation easement, there is a servient tenement but no dominant tenement as there is no requirement for the holder of the easement rights to own other land.
1.E.2 Encumbrance / Servitude
Servitude (F); Servidumbre (E)
An encumbrance on the land is a right adversely affecting the land.
Encumbrances include a number of burdens. Many are registrable in formal real estate registration systems; such as restrictive covenants, easements, mortgages and registered leases. An encumbrance is broadly similar to a servitude, a term commonly used in continental European jurisdictions but infrequently used in English law.
Some such rights are not registrable under English law, and these overriding interests must be checked for by enquiry and inspection. They include legal easements, “squatters’ rights acquired or being acquired under the Limitation Acts, rights of those in actual occupation or receiving the rents or profits from the land, and leases for terms of not more than 21years.
1.E.3 Entail
An entail in English law restricts succession to land to direct lineal descent and is intended to keep land in the same family.
A freehold property can be entailed by creating a fee tail. This form of inheritable ownership restricts succession to the land in question to direct lineal descendants of the original grantor. It effectively creates a succession of life interests. These interests were legal estates prior to the Law of Property Act, 1925, but since then are regarded as equitable interests. They are now relatively infrequently encountered.
1.E.4 Equitable interest
Equitable interests are interests in English law that derive from the law of equity.
English law is based on a set of canons of law; statute, Common Law and equity. Equitable interests in land include those interests that are not defined as legal estates in land, including those broadly speaking of a commercial nature, such as restrictive covenants and mortgages, and those of a family nature, such as life interests or interests in co-ownership. The Law of Property Act, 1925, defined only two statutory legal estates in land, the freehold and the leasehold. All other interests in land, such as those identified, therefore are, or became as a result, equitable interests.
1.E.5 Estoppel
Estoppel is the prevention of a course of action by a person or entity by their own prior action.
An interest in land can be created in equity where a landowner creates or encourages an expectation on the part of someone that he or she will have an interest in the land. Where that person takes possession of the land and subsequently invests money in the anticipation of that expectation, then, the courts in equity will give effect to the expectation. This creation of an interest in land in equity is known as proprietary estoppel.
1.E.6 Eviction
Déguerpissement (F); Desalojo / Despojo / Lanzamiento (E)
Eviction is the removal of someone from their occupation of land or property.
The term is very commonly used in connection with the eviction of squatters, but may also be used in the context of unlawful eviction and harassment. In the latter case, landlords have been held liable for attempting to drive out tenants in lawful occupation of a property. This has usually involved the landlord breaching the covenant, actual or implied by a tenancy, that the tenant should benefit from the quiet enjoyment of the property. The remedy of the tenant has generally been in damages, although statutory entitlements to damages may also be specified.
1.F.1 Fee simple absolute
The fee simple absolute, also known as the freehold, is full ownership of land in English law, providing the owner with the largest ‘bundle of rights’of ownership.
1.F.2 Fishing rights / Piscary
Fishing rights are specified rights to fish, whether in freshwater or in marine areas. The nature of fishing rights varies according to the jurisdiction but distinctions are often made between rights for marine fishing and those for freshwater or inland fishing.
|
In the UK it is usual for fishing rights to be considered differently whether they are marine fishing rights or freshwater fishing rights. In the United Kingdom most offshore commercial marine fishing rights are controlled through the EU’s Common Fisheries Policy. Some commercial marine fishing rights, such as netting for salmon, are controlled by the relevant government department, while others, such as fixed or estuarine coastal nets for salmon, are frequently privately owned. Fishing for marine shellfish is often free access. Freshwater fishing rights are usually an integral part of the landowner’s riparian rights that extend out to the middle stream of a river. They may also, however, have been separated from the landownership and be owned as a separate legal interest, or may exist as a distinct customary right. Examples of reassertion of indigenous peoples’ rights in fisheries in marine areas include:
Examples of assertion of indigenous peoples’ rights in fisheries in freshwater areas include:
|
1.F.3 Freehold
Freehold, the everyday equivalent of the technical legal term fee simple absolute, is full ownership of land in English law, providing the owner with the largest ‘bundle of rights’of ownership.
1.F.4 Fructus industriales
Fructus industriales are cultivated crops. Generally speaking in English land law, fructus industriales will not be regarded as a part of the land in a conveyance, and will form a part of a tenant’s claim for tenant right compensation at the end of a tenancy.
1.F.5 Fructus naturales
Fructus naturales are things that grow naturally on the land which do not require annual attention, such as apple trees.
Generally speaking in English land law, fructus naturales will be regarded as a part of the land in a conveyance.
1.H.1 Hereditament
A hereditament is real property that can be inherited, such as, for example, a freehold or a leasehold.
1.H.2 Hierarchy of courts
The hierarchy of courts is the structure of the legal administrative system of a given jurisdiction.
|
Examples of hierarchies of courts include:
The High Court, the Crown Court and the Court of Appeal comprise the Supreme Court of Judicature, with the Crown Court having principally a criminal jurisdiction. The various divisions of the High Court deal with various jurisdictions including those where real estate is an important element. Appeal from both of these courts is generally to the Court of Appeal. The Appellate Committee of the House of Lords hears appeals from the Court of Appeal and in some cases direct from the High Court. The highest court of appeal since the UK joined the EU is the European Court. Several specialist functions are fulfilled by specific tribunals. The Lands Tribunal, for example, deals with appeals from local valuation tribunals on rating issues, assessments of compensation where agreement cannot be reached, and other property related issues Appeals from the Lands Tribunal on a point of law are generally heard by the Court of Appeal. The Judicial Committee of the Privy Council continues to fulfil an appellate function for a limited number of Commonwealth countries, including for example New Zealand and Jamaica. |
1.L.1 Land
Fonds (F); Fundo / Heredad / Finca (E)
Land in a legal sense is real estate.
1.L.2 Land law
Droit foncier (F); Derecho de tierras (E)
Land law is the body of law dealing with land, its definition, ownership and use whether urban or rural.
1.L.3 Land ownership
Land ownership in the English Common Law context is comprised of a set of rights in land held by the owner.
Technically in England and Wales land is held from the Crown as the ultimate owner. Land ownership rights include in this context the natural rights of support, of a free flow of air and of water where appropriate. They also include the right to alienate or dispose of the whole or part of the interest to whomsoever, and on whatever terms as to sale, rent or gift the owner and acquirer please. The rights of enjoyment enjoyed by the owner of the freehold are the widest possible, consistent with not interfering with the rights of others or with statutory restrictions. The freeholder has the right to enjoy all that is on, beneath or above the land and has the right to use and even to waste the land if he or she wishes.
1.L.4 Land tenure system
Faire-valoir / modes de faire-valoir (F); Formas de explotación / modos de aprovechamiento (E)
The land tenure system in a given jurisdiction comprises the set of possible bases under which land may be used. As such this range encompasses both rural and urban tenures and includes ownership, tenancy and other arrangements for the use of land.
The land tenure system in an English Common Law based jurisdiction will, to a greater or lesser extent, usually comprise a range of different types of tenures.
|
Examples of a land tenure system where the tenure structure accommodates both English land law based tenure and indigenous land tenure include:
The balance of land is either state land or freehold land. State land is administered by the government according to statute, and is usually leased to tenants. All of these tenures are affected by overriding legislation affecting landlord and tenant relations. In particular, the agricultural sector has been greatly affected by the Agricultural Landlord and Tenant Act. Examples of a land tenure system that has developed in the Common Law and has been largely formalised into statute include:
|
1.L.5 Landlord
Propriétaire (F); Dueño / Dueña (E)
A landlord is a person or entity receiving rent from a tenant.
When an owner of land leases that land to another, the tenant is known as the lessee and the owner as the lessor or landlord. The term landlord is widely used to refer to any person leasing or subleasing land and may thus also refer to a tenant who is subleasing land to a subtenant.
1.L.6 Lease
Bail (F); Arrendamiento / Arriendo (E)
A lease is a contractual agreement between a landlord and a tenant for the tenancy of land.
A lease or tenancy agreement is the contractual document used to create a leasehold interest or tenancy. The period of the lease is known as the “term” of the lease. Alease requires the following as a part of the agreement. The lease should be for a definite period, or for a period that is capable of definition. The date of commencement should be fixed, and the date of termination either fixed, or capable of being fixed. The lease should provide to the tenant the right to exclusive possession of the land, thus giving the lessee the right to exclude others, including the landlord, from the land. Where exclusive possession is not granted, the occupation will generally be regarded as a licence.
The lease will generally include a set of undertakings or covenants by the landlord and the tenant. These usually include tenant’s covenants to pay rent and taxes, to keep the premises in repair, to allow the lessor to view the state of repair of the property and, on the lessor’s part to allow the tenant the quiet enjoyment of the property. In addition, a condition of reentry will usually be inserted in the event of the tenant’s non-payment of rent (forfeiture). There are in addition certain implied rights and obligations on the part of the lessee and lessor, including for example the right of the lessee to reap crops that have been sown (emblements). Express covenants in addition to the usual covenants that are likely to be included are those not to assign or sublet, and to insure against fire ad other specified risks.
1.L.7 Legal
Légal (F); Legal (E)
The term “legal” describes an action or thing that conforms with the law.
1.L.8 Legislation
Législation (F); Legislación (E)
Legislation is the body of laws which make up the law and comprises the formal laws passed by the legislature together with any subordinate legislation, including regulations and statutory instruments.
1.L.9 Lessee / Tenant
Locataire (F); Arrendatario / Inquilino (E)
A lessee holds a lease or tenancy of land under a lease contract or tenancy entered into with a lessor or landlord.
1.L.10 Licence
Permis d’occuper (F)
A licence confers on the licensee a right to enter land but does not grant a legal interest in that land.
A licence covers a wide range of agreements. An example is a timber licence which grants a person the right to enter land to harvest timber.
1.L.11 Life interest
A life interest is an interest enjoyed for a life.
In English law a life interest is usually created by a settlement entailing the land or by a specific grant. Since 1925 in England and Wales, a life interest is an equitable interest. The tenant for life will generally be liable for waste, unless this is specifically excluded in the grant. The life tenant may sell the interest in which case it continues to be enjoyed for the life of the original life tenant and is said to be held pur autre vie.
1.L.12 Local community
Collectivité territoriale ou locale (F);
Colectividad territorial o local (E)
Local community has no standard definition. It will typically be defined according to the circumstances. These may be relatively informal where the management of common property resources is concerned. They may be formal, and statutorily based where dealing with planning issues.
Local communities are involved to varying degrees in decisions and activities relating to the use of land within their jurisdictions. The actual level of local community responsible for a given decision or activity will depend on how the local administration is structured and what powers are allocated to the respective tiers of the administration.
1.M.1 Management rights
Droit de gestion (F); Derecho de gestión (E)
Management rights are the rights of the owner to manage the interest in land in accordance with the limitations imposed by the interest.
The possession of land, whether under the legal estates of fee simple or leasehold, or in various interests in equity, such as a life interest, confers specific rights in relation to the management of that legal estate or interest. The rights associated with some estates and interests are wider than others. For example, the fee simple absolute has the greatest possible rights being perpetual, providing the widest scope for management. Leasehold interest rights are more limited, both in duration and the nature of the rights, as the lessee is liable for waste during the term of the lease.
1.O.1 Occupation / Possession / Squatting
Occupation (Envahissement / Appropriation) (F);
Ocupación / Invasión / Usucapión (E)
Occupation is the physical occupation of land.
Occupation is distinct in English law from possession. The latter may involve occupation, or it may simply be the right to receive rents or profits from the land in question. It is generally a matter of fact, although legally speaking the fact of occupation may, for example, be established by an employee or representative of the claimant.
The occupation of land may be significant in creating a number of interests in land. In particular it may create overriding interests that are not registered under the system of land registration. In order to identify any occupier’s rights it is necessary to inspect the land and to make enquiries of the vendor about the situation.
1.O.2 Occupier
Occupant (F)
The occupier of land is the person who is in occupation of that land.
1.O.3 Owner / Proprietor
Propriétaire (F); Propietario (E)
The owner of land is the person who owns the relevant legal interest in the land as recognised by the law.
The owner does not necessarily possess the land, as for example, when it is leased or adversely possessed by another.
1.O.4 Owner-occupier
The owner-occupier of land is one who both owns and occupies the land.
1.P.1 Parcel
Parcelle (F); Parcela (E)
A parcel (or plot) of land is an area of land with a particular ownership, land use, or other characteristic.
A parcel is frequently used as the basis for a cadastre or land registration system.
“The basic spatial unit in a cadastre is known as a parcel. Aparcel can be defined in many ways depending on the purpose of the cadastre. For instance, an area with a particular type of land use may be considered a parcel in some systems; in others it is defined as an area exclusively controlled or owned by an individual or group of individuals (e.g. family or corporation). In some systems a property may consist of several parcels of land which may be distributed over a small region such as a village. The flexibility in the definition makes it possible to adapt the cadastral system to particular needs and thus also to adapt the cost of the registration. If, for instance, the purpose is mainly to protect the ongoing traditional land use, larger parcels representing common interests can be defined as the basis for the system.” FIG, 1995
IMAGE 1
1.P.1 Parcel
Parcels in the region of Quito, Ecuador.
Photo: Yann-Arthus Bertrand.
La Terre vue du Ciel. Editions de La Martinière.
1.P.2 Party wall
Party walls are structures that may be used to define boundaries under a ‘general boundaries’principle.
Under English law the definition of boundaries is usually under the “general boundaries” principle. Boundaries in such circumstances are not specifically surveyed but are marked on Ordnance Survey maps for conveyancing and registration purposes. In many cases some form of boundary structure is erected to mark the boundary. Some boundary structures are clearly on one side of the boundary and within that side’s ownership. Others are over the boundary line and mark it directly. Where this is the case, the law usually divides the ownership vertically with each side having a right of support from the other. Such boundary structures, whether they are walls, hedges or ditches are known in legal terms as “party walls”.
1.P.3 Periodic tenancy
A periodic tenancy is a monthly or weekly tenancy that continues indefinitely until proper notice of the relevant period is given.
1.P.4 Personal property / Moveable property / Chattel
Meuble / Mobilier (F); Mueble mobiliario (E)
A chattel, also known as a fixture, is a movable, personal property, such as cattle. It is distinct from the real property interest.
1.P.5 Planning permission
Planning permission is the grant of permission for a specified development under the relevant legislation.
|
Planning permission in the United Kingdom dates from the 1947 Town and Country Planning Act. Although this legislation has subsequently been revised and consolidated, it remains essentially the same, with planning permission required for anything that constitutes “development”. This is defined as almost anything requiring building, engineering, mining or other operations, or material changes of use. The requirement for planning permission generally has extended down to the low water mark. Although agriculture and forestry were originally largely exempted from planning constraints, recent legislation has considerably reduced these exemptions. Where planning permission is refused, appeals may be made to the relevant government ministry and will be heard by a planning inspector appointed for the purpose. Further appeal is available to the Court of Appeal on a point of law. Planning permission is distinct from building regulations approval which is administered under the Public Health Acts. |
1.P.6 Possession
Possession (F); Posesión (E)
Possession of land may involve physical occupation with or without permission from the owner, or the right to receive rents or profits from the land.
1.P.7 Prescription
Prescription (F); Prescripción (E)
Prescription is the acquisition or extinction of rights by lapse of time.
Prescription is the way in which property rights may be legally acquired through possession for a period of time that is continued, peaceable, and without lawful interruption for the legally stipulated period. Under English Law, prescription is restricted to incorporeal rights such as easements. Under Roman law, prescription applies to ownership over parcels of land as well.
1.P.8 Private property
Propriété privée (F); Propiedad privada (E)
Private property is property that is held privately, whether individually, jointly or corporately. Private property and the associated rights of ownership are a keystone of market economies. In those countries that have written constitutions, the right to hold private property is usually enshrined as a fundamental human right.
Although different economic systems have different attitudes to the private ownership of real property, the human right to hold private property is generally acknowledged. The Universal Declaration of Human Rights of the UN includes at Article 17 that (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.
1.P.9 Property law (real / immovable)
Droit immobilier (F); Derecho inmobiliario (E)
Property law is the generic term within which falls all of the legal framework dealing with property, its use, ownership, regulation and disposition. As such, property law applies both to real property and personal property, and is distinguished from land law, which applies only to real property.
1.P.10 Protected tenancy
A protected tenancy is one that enjoys the protection of statute under the relevant landlord and tenant legislation.
1.R.1 Real property / Immoveable / Real estate
Propriété immobilière (F); Raíz / Inmueble / Bienes raíces / Bienes inmuebles (E)
Real property or real estate is a generic term for land and buildings.
The terms, real property and real estate, arise from the concept of a “real” action which allowed an owner who was wrongly deprived of land to recover it. In contrast, in the case of moveable or personal property, a “personal” action allowed for compensation for wrongful dispossession and not for the return of the object.
1.R.2 Reform
Réforme (F); Reforma (E)
A reform is a modification of an existing law or institution, either by the revision of an existing law or by the enactment of a new law.
Reforms are the expression of changing technical, economic, social and political perspectives and preferences through the legislature. The process of reform in a parliamentary democracy on the lines of the Westminster parliament involves a series of stages whereby a proposal for a law moves towards effective enactment.
1.R.3 Regime
Régime (F); Régimen (E)
A regime is the general system of government of a country or an organisation, comprising the laws and administrative institutions viewed as a whole.
1.R.4 Rent
Redevance / Loyer (F); Canon / Renta / Renta fija (E)
The rent is the periodic sum, often weekly, monthly, quarterly or annually, paid under a lease or tenancy agreement in return for the use of the property.
Rentals may be fixed according to the prevailing market values, which tends to encourage more efficient use of the property because the more efficient tenants will be able to afford the higher rents. It is common practice for there to be regular revision of rents. Although the arrangements vary from market to market, two common approaches are for regular reviews to the current full rental value based on comparable rentals recently agreed, or for rents to be reviewed on the basis of changes in the retail prices index.
It is often the case for rents to be fixed administratively where publicly owned land is leased, or for rents to be controlled below market rental values as the result of protective landlord and tenant legislation.
Rents that are currently at the full market rental value (broadly the rental that would reasonably be expected to be agreed between a willing lessor and a lessee) are referred to as rack rents, and such properties are rack rented.
Where the existing rent, or rent passing, is less than the full rental value, a profit rent is said to exist, and this creates value in the leasehold interest, varying according to its duration.
In some cases the landlord may demand or decide to accept a capital sum from the tenant in lieu of rent at the outset of the lease. This is known as a premium, and the rent will often be referred to as a ground rent. Where the rent is negligible it is commonly referred to as a peppercorn rent.
1.R.5 Restrictive covenant
A restrictive covenant as defined in English land law is a restriction in favour of the dominant land which imposes a burden on the servient land.
A restrictive covenant has to be negative in substance, restricting the servient land in some way, very commonly as regards its use. Restrictive covenants may range from restrictions on types and sizes of buildings to prohibiting the hanging of clothes washing outside.
1.R.6 Reversion
The reversion of a property is enjoyed by the freeholder, as original grantor, on the death of a life tenant. The term is also used to describe the landlord’s interest in the land for the period after the term of a lease has expired. This is the point at which the freeholder is entitled to regain occupation at Common Law. In practice statute law, through relevant landlord and tenant legislation, has modified this right considerably, thus restricting the ability of the freeholder or landlord to remove a tenant.
1.R.7 Right of enjoyment / Usufruct
Droit de jouissance / Droit d’usufruit (F);
Derecho de usufructo o goce (E)
The rights of enjoyment of the owner of the fee simple are very wide and include the right to do whatever he or she wishes on the land providing it doesn’t interfere with the legal rights of others. The owner is further restricted in the unfettered enjoyment of the land by statute, most significantly as to use by the Town and Country Planning Acts, as to building by the Public Health Acts, and as to landlord and tenant relations by a string of relevant laws.
A life tenant has more restricted rights of enjoyment of the land and would generally, for example, be liable for waste unless specifically excluded in the grant.
1.R.8 Right of pre-emption
Droit de préemption (F);
Derecho de preferencia / Prelación (E)
A right of pre-emption is the right of first refusal enjoyed by the holder of the right which requires the vendor of the land to give the holder the first opportunity to buy on agreed terms.
In effect, the right of pre-emption becomes an option as soon as the owner takes steps showing a desire to sell.
Statutory rights of pre-emption are not a typical feature of land management regimes based on English Common Law. In France, and French law influenced regimes, the right of pre-emption in favour of neighbouring farmers is a common provision. These are administered in France, for example, by the rural SAFER organisations.
1.R.9 Right of way
Rights of way may be either private or public. Aprivate right of way is an easement, conferring the right of way only on the owner of the dominant tenement over the servient tenement. Apublic right of way is a right of “highway” enjoyed by the general public.
1.R.10 Rights
Droit (F); Derechos (E)
Rights are defined by the legal framework and provisions under a given regime.
Different societies have different attitudes and so the nature of these rights varies, notwithstanding that there are some rights that are fairly universally acknowledged under declarations such as the Universal Declaration of Human Rights.
The owner of real estate enjoys a wide range of rights including, where appropriate; natural rights (support, air), rights of alienation, rights of enjoyment (freedom of use, everything in, on or above the land, waste). Where property rights are infringed it is common for there to be some form of compensation.
1.R.11 Riparian rights
Riparian rights are those rights in respect of the use and entitlement to water enjoyed by a riparian owner whose land is contiguous with a river or stream.
A riparian owner under English land law has the right to a flow of river or stream of substantially unaltered quality and quantity. A riparian owner may take adequate water for domestic purposes and the watering of cattle. If water is taken for any other purposes, a similar quantity and quality of water must be returned to the watercourse. The riparian owner also enjoys the rights to fish in non-tidal waters. Where opposite banks are in different ownership these rights extend to the middle of the stream.
1.S.1 Servient tenement
A servient tenement is a property that is subject to a right of easement.
An easement requires that there should be a servient tenement that is subject to a right of easement, such as a right of way, enjoyed by a dominant tenement
1.S.2 Squatter
A squatter is a person who takes unauthorised possession of unoccupied premises. Under English law, a squatter may acquire title to the property by adverse possession and the operation of Limitation Acts.
1.S.3 State property
Propriété de l’Etat / étatique (F);
Propiedad fiscal / Propiedad pública (E)
State property is property owned by the State. Different regimes adopt different approaches to the identification of state property.
The feudal system from which English land law stems identifies the Crown (the personification of the State) as the source of all land ownership, as the ultimate owner of all land. In another sense the State is an owner of land as property in the same way as any other owner, public or private, and will acquire or dispose of land and enjoy the same rights as any other land owner. In a third sense the State’s over-riding capacity to control land through, for example, town and country planning, reflects the fact that the rights of the land owner may be limited by the State.
1.S.4 Statute law
Droit écrit (F); Derecho escrito (E)
Statute law is that part of the legal system that is delivered by parliament, and is distinct in English Common Law countries from judicial precedent in which law is developed by the decisions of the Courts.
1.S.5 Subtenant
Subarrendatario (E)
A subtenant is the lessee of a tenant where the tenant chooses (usually with the required permission of the landlord) to create a smaller leasehold interest.
A subtenant’s interest must be for a period less than that enjoyed by the tenant, and is often for the remaining term less a few days. The tenant in such an arrangement retains the rights and responsibilities of a tenant to the landlord rather than assigning the whole remaining tenancy to another and passing on those rights and responsibilities as far as the law allows. It is therefore possible for a chain of tenancies to develop out of the original freehold.
1.T.1 Tenancy
A tenancy is a lease or a periodic tenancy.
1.T.2 Tenant / Tenant farmer / Lessee
Tenancier (F); Tenedor (E)
A tenant is a lessee who has the exclusive right of possession of premises under a lease. The lease is granted by the landlord or lessor.
1.T.3 Tenant right
Tenant right, in an agricultural context, is a specific group of rights of a tenant to compensation from the landlord at the end of a tenancy.
|
Examples of tenant right include:
|
1.T.4 Tenure
Tenure (F); Tenencia (E)
Tenure is the relationship, whether legally or customarily defined, among people as individuals or groups, with respect to land and associated natural resources. Rules of tenure define how property rights in land are to be allocated within societies. Land tenure systems determine who can use what resources for how long, and under what conditions.
1.T.5 Timeshare
Jouissance à temps partagé (F);
Posesión compartida por tiempos limitados (E)
A timeshare is a means of dividing a property on the basis of time, most commonly on a weekly basis.
A timeshare is a means of dividing a property to make it more marketable and to realise greater proceeds from the sale than if sold as a whole. In principle it is a form of multiple ownership. It is for example quite possible to have a leasehold timeshare, in which case the lease is of the specified period, usually by the week, over the term of the lease. This approach is particularly commonly used in the sale of holiday properties.
1.T.6 Title
Titre foncier (F); Título de tierras / Escritura pública / Título de propiedad (E)
The title to a property is the basis of its ownership.
In the context of English land law this is a function of the doctrine of estates and the doctrine of tenure. In order to prove title under the preregistration title deeds system or in unregistered land in England and Wales, it was necessary to be able to demonstrate a clear root of title going back at least 15 years. With registered land, the fact of registration acts as proof of title in the quality registered. Appropriate searches and enquiries still have to be made, however, to ensure that there are no over-riding interests that may affect the title.
1.T.7 Transaction costs
Coûts de transaction (F); Costos de transacción / Compromiso o promesa de compraventa (E)
Transaction costs are the costs associated with the transaction of property. Transaction costs include both time and money. Time involved in some of the processes may be considerable, particularly for example where registration is undertaken personally. The money costs will generally include some or all of the following:
> agent’s fees for the sale of the property (usually expressed as a percentage of the transaction sum)
> lawyer’sfees
> stamp or transaction duty or tax
> value added tax
> registration fees
1.T.8 Trespasser
A trespasser is generally defined as someone who goes onto land without any invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to. The distinction between a trespasser and a lawful visitor may be important in identifying liability in the event of misadventure.
1.U.1 Unclaimed land
Terres vacantes (F); Tierras vacantes / Baldíos (E)
Unclaimed land is land for which there is no owner or claimant. The concept of unclaimed land does not practically arise in England and Wales because all land is owned, as there will always be someone with the superior title, if only the Crown. The idea has, however, been of particular significance during the process of colonisation by the European powers. Acommon approach in such circumstances in Africa, for example, was for the colonising power to enact legislation extinguishing customary claims over land deemed unoccupied and to then issue leasehold or freehold titles to new occupants, generally colonist settlers. BRUCE, J. W., and MIGOT-ADHOLLA, S., 1994
In the former French colonial territotories, where the concept of terres vacantes et sans maître remains often a part of the legal framework, it is now considered that there remains effectively no basis for such a claim as all land, whether fallow, reserve or bush will usually be under some person or group.
|
Examples of the use of the concept of unclaimed or vacant land include:
|
1.U.2 Use right
Droit d’usage / Usus (F); Uso / Usuario (E)
The use right or right to use land is one of the essential rights of land ownership.
In some continental European jurisdictions the usufruct is the right to use and take the profits from immovable property as though the owner, but with a duty of preservation. The usufruct may endure for life, or it may be for a specified number of years. In the latter case it is terminated on the death of the beneficiary. In some jurisdictions the right may be transferable. The nearest equivalent in English law is the life interest where the life tenant will be liable for waste.
1.V.1 Vacant possession / Vacant
Bienes mostrencos / Bienes vacantes / Cosas de nadie (E)
Vacant possession property is property with no one in occupation or possession. A property for owner-occupation is generally sold with the benefit of vacant possession. In other words, the present owner will ensure their own or other occupier’s removal on or before completion of the sale and leave the property vacant.
1.W.1 Waste (Abuse)
Droit de disposer/Abus (F); Abuso (E)
The doctrine of waste, technically refers to the owner’s right to change the nature of the land, whether for better or for worse, although the most common interpretation is of abuse of the land.
Under English Common Law, those with restricted interests in the land such as tenants under a lease, are liable for waste. The owner’s interests are usually protected directly by specific covenants in the lease contract.
1.W.2 Wayleave
A wayleave is the right acquired in order to route something through the land of another.
The term is commonly used in respect of gas and other pipelines and electricity and other cables. In legal terms a wayleave is in effect an easement.
REFERENCES CHAPTER 1
BRUCE, J.W., andMIGOT-ADHOLLA, S., Introduction: Are Indigenous African Tenure Systems Insecure ? in BRUCE, J.W., and MIGOT-ADHOLLA, S.,Searching for Land Tenure Security in Africa, Kendall/Hunt Publishing Co, Iowa, 1994
CARD, R., MURDOCH, J., SCHOFIELD, P., Law for Estate Management Students, 4th Ed, Butterworths, London, 1994
FIG, The FIG Statement on the Cadastre, International Federation of Surveyors, Australia, 1995
THOMAS, P., Western Samoa: Custom, change and constraints in relation to land rights, registration and productivity, in ACQUAYE, B., and CROCOMBE, R., Eds., Land Tenure and Rural Productivity in the Pacific Islands, University of the South Pacific, Suva, Fiji Islands, 1984
WAITANGI TRIBUNAL, Maoriwhenua Fishing Report: Report of the Waitangi Tribunal on the Maoriwhenua Fishing Claim, Department of Justice, Wellington, New Zealand, 1988
WEIBE, K., TEGENE, A., KUHN, B., Partial Interests in Land: Policy Tools for Resource Use and Conservation, US Department of Agriculture, Economic Research Service, Agricultural Economic Report No 744, Washington, 1996
