But what is land in a legal sense and why is the law around it so deeply embedded, rightly or wrongly in our history, culture and political landscape? .
My next series of posts will explore the basic technical aspects of land law, some of its anachronisms and how it underpins our prevailing political philosophy.
Within a legal context, land is a type of property. Property refers to anything which is capable of being owned. But land is unique within this definition in that unlike a pint of milk or a bar of gold, it cannot be physically handed from one person to another.
Land is also unusual in that it can be owned by one person, yet others may have a interests or rights over it which can be legally enforced. Let us take for example a sprawling country estate: The Lord of the Manor is the owner of all the land within the its boundaries. However there are also several cottages on the estate which are rented, meaning their occupants have a legal right of exclusive occupation in the form of a tenancy. In addition, there are several public rights of way which cross the surrounding farmland. Furthermore, a neighboring farmer has a private right of way over a corner of the land, agreed historically because it is the only way she can access two of her fields.
We can see from this simple example, that ownership of land does not always confer upon its owner unfettered control of it. In terms of social progress, this has largely been beneficial to society although statutory disputes like Right to Roam prove that this is not maintained without friction.
The distinction between other types of property and land is particularly interesting not in the enforcement of disputes. In "other" European countries there is a clear distinction between property that is "moveable" and that which is "immovable". This leads to the law being largely distinct in its treatment of the two categories. But this is not so clear cut in England and it is here that the English taste for legal historicism begins to emerge.
English law has traditionally taken a more hierarchical approach to property, with the freehold ownership of land seated very much at the top of the legal tree. In fact until codification of Habeas Corpus in 1679 and the rather tardy abolition of slavery in 1833 it even sat above the ownership of another human being.
But it is not the actual definition of land as property that reinforces that hierarchy, rather the remedies available in the event of dispute. In cases of freehold land being taken (i.e. occupied) unlawfully, the law allows the freeholder, or landlord to take "real" action. Historically this may have taken the form of mandated violence. Today, there are statutory controls over how this power is exercised. But despite this, the current allowance for eviction and repossession are still themselves an act of violence.
In contrast, the rights of the owner of other types of property are more obliquely enforced. To this day, property other than freehold land that is taken unlawfully can only be restored by the actions of the courts, sometimes in conjunction with the award of damages. This includes leasehold property (the distinctions between freehold and leasehold are discussed in the next post). So there is an intrinsic imbalance between the rights of a freeholder and those of a leaseholder, despite the provisions of the Assured Shorthold Tenancy Acts of 1988 and 1996.
This imbalance is far less stark in most western and central European countries, where the freehold ownership of land is not held in as high regard, economically or culturally as it is in England. This is no coincidence and is one of the reasons why the English courts are unlikely to move away from the status quo any time soon. We can assume that, for now at least, an Englishmans house will continue to be his castle.
References:
Stockdale, M. (2011). Galbraith's building and land management law for students. Oxford: Butterworth-Heinemann.
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