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Property & Land Law

1) In looking to discuss how far a freeholder can be regarded as the outright and unrestricted owner of the land. Modern land law; this has developed over a period of at least a thousand years. However, whilst it is assumed land is 'owned' by those with title to it under one of the two means of land ownership under section 1 of the Law of Property Act ('LPA') 1925 - freehold and leasehold - historically, English law was founded upon the premise all land was owned by the monarchy. Therefore, the law looks to distinguish between the ownership of the land and the enjoyment of rights under the doctrine of estates. This is because, as was stated in Walsingham's Case, "the land is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates which are no more than diversities of time".

The owner of the 'freehold' ('fee simple absolute in possession') is the larger of the two estates and tantamount to the actual ownership of the land because it is the most fundamental interest available indefinitely as long as there are people who can take the property under the will of the current owner, or under the rules relating to intestacy before reverting back to the crown, as lesser rights and interests are derived from it. Accordingly, for example, where a lease is granted, the leasehold is simply carved out from the freehold interest and, where there is a trust of land, the equitable interest is enjoyed by the beneficiaries of the trust, but the freehold is generally held by the trustees. Therefore, whilst the freehold interest in any land will be held by someone, the freeholder's rights will be qualified to the extent third parties enjoy interests that detract from the freeholder's right to enjoy the freehold themselves under section 1(3) of the LPA 1925. This is because the freeholder would need to know whether they would be bound to recognise any estates and interests someone may have in the property if they can prove they made a contribution. Moreover, although such ownership prima facie carries with it the right of the freeholder to do whatever they want with their land, in reality their freedom is circumscribed by the state's intervention. This is because ownership of certain valuable materials in the land is vested in the crown, whilst the ability of the freeholder to develop and build on the land, and the use it is put to, are all regulated by planning controls. Therefore, it is clear that whilst the freeholder may 'own' the land, their rights are neither absolute nor insurmountable in such cases because of the need to generally co-exist with other rights and interests of surrounding properties.

(iii) Finally, in conclusion, when it comes to the matter of William's plan to add a two-storey extension to the north side of Bluetiles, amid Charlotte's fear that this will considerably reduce the light to her study as well as her living room and kitchen, Charlotte must be advised that this may be hypothetical because it may be dependent upon facts that we are unaware of. This is because Charlotte needs to be advised if she covenanted with the previous owners of Bluetiles that neither they nor their successors in title would build any construction or extend any presently existing construction beyond the rear of the property then their successors in title to William could not generally take the benefit of any agreement unless he was also prepared to accept the related burdens.

Moreover, with regards to the possibility of unregistered 'equitable easements', Charlotte needs to be advised that this may be recognised as an easement under the rules of estoppel where she can show there was a representation or assurance from the previous owner she would be entitled to exercise an easement over Bluetiles, and Charlotte acted to her detriment upon it, then an easement may be said to have been created that William must abide by now. This is because she may argue that the light to her skylight is obscured for the right to light as a nuisance by interfering with her 'comfort'. But it will be dependent upon the specific circumstances of the case because of the fact that the amount of light to be expected will be dependent upon the nature of the property because a mere diminution in the light is not sufficient and just because Charlotte had a 'special use' (of her study as a crime fiction writer) unless William was aware of this fact when the easement was acquired. However, there is also a duty to disclose 'overriding interests' that adversely affect the land. This is because the concept of 'unregistered interests' is inconsistent with any clear system of land registration so they must now be noted on the land register so they cease to be 'overriding' and that only legal easements and profits can be now be 'overriding' (except 'equitable easements' that were 'overriding' before the 13th October 2003). Therefore, Charlotte would need to be advised that William would only be able to build the two-storey extension to Bluetiles (subject to planning permission) so long as the 'equitable easement' was created after the 13th October 2003 and so this may be dependent upon his long Bluetiles had been empty before William moved in.

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