100 Years of the Law of Property Act 1925

The Law of Property Act 1925 (LPA 1925) is 100 years old this year. To celebrate its birthday, here’s my top 10 of the provisions it enacted:

1. The LPA 1925 swept away numerous legal estates that had previously caused confusion and uncertainty. Section 1 reduced these to “an estate in fee simple absolute in possession” (which is a fancy way of saying “freehold”) and “a term of years absolute” (leasehold). Commonhold came much later in 2002 and never really caught on, but this is one to watch as the government has plans to revive it and has promised draft legislation later this year. Section 1 also limits the legal interests and charges that can be created and transferred. The most important and common of those are legal easements and legal charges.     

2. Thanks to section 2, a purchaser for value of a legal estate without notice of an equitable interest will overreach it meaning that the equitable interest in the land will transfer to the sale proceeds. This makes trusts and beneficial interests compatible with a system of property law that relies on a register of land.

3. Sections 52 and 53 go hand in hand. Conveyances of (and interests in) land must generally be made in writing and signed as a deed. In my darker moments I have contemplated how many invalid conveyances there have been of the Queen Vic (East Enders reference). Not to be recommended as a topic of conversation at a dinner party unless you don’t want a repeat invitation.

4. Lawyers love words, but section 62 saves a lot of them. It means that any conveyance of land includes existing easements and any associated rights that are enjoyed in connection with the land (but which aren’t quite easements). It can also transform those rights into legal easements so section 62 can be specifically excluded - and often is.

5. Section 84 gave the Court the power to modify or discharge restrictive covenants – broadly if they are obsolete or if doing so would not cause any injury (public interest was added as a reason in 1969).  It took until 2020 for this section to reach the Supreme Court and they concluded that the First Tier Tribunal should adopt a cautious approach to the exercise of its discretion. That meant a developer who relied on its own cynical behaviour to construct social housing in breach of a restrictive covenant could not claim that doing so was in the public interest. 

6. It came about 125 years too late for Mrs Bennet, but section 130 sounded the death knell for entails (or fee tails), which prevented her daughters from inheriting their father’s estate in Pride and Prejudice.

7. Section 136 sets out the requirements for a legal assignment of the benefit of any debt or contractual right and therefore creates certainty and streamlines enforcement. The assignment must be absolute, in writing, signed by the assignor and notice must be given to the other parties to the contract.

8. A perennial winner in the least imaginative naming contest is the “section 146 notice”. This is a notice that landlords must serve on tenants who breach their lease. If the tenant doesn’t remedy the breach, the landlord’s right to forfeit kicks in.

9. When might a lease become a freehold? When the lease is capable of enlargement under section 153.  Broadly such leases will have been granted for at least 300 years (and have 200 years left to run), will be at a rent with no monetary value and the landlord won’t have a right to forfeit. I’ve only ever enlarged a lease once in my career, and it was a memorable day indeed, but strangely another story I’m not allowed to share at dinner parties!

10. If a lease or a mortgage doesn’t include a mechanism for serving notices, section 196 will save the draftsman’s blushes. Notices served on tenants and mortgagors must be in writing and either left at or sent by registered post to the recipient’s last known address or registered address. Notices will be deemed to be served when delivered so don’t lose the proof of delivery. In a shocking example of legislation failing to future proof, the LPA 1925 did not consider service by email. The law has yet to catch up with this concept, but it is not generally recommended for property transactions given the implications if there is a technological fail.