The country is celebrating a big anniversary today, 9th April 2025. 100 years ago today, the Law of Property Act 1925 (the “LPA”) received Royal Assent. The LPA brought overdue coherence, eased property transactions for the next century, and still forms the basis of English land law today. In this article we set out why this law came about, how it helped, and how it continues to help us.
History of English land law
“A tortuous and ungodly jumble”
Pollock and Maitland said, in their History of English Law of 1895: “In so far as feudalism is mere property law, England is of all countries the most perfectly feudalised”.
In England, all land has belonged to the Crown since the 1200s. Behind this was the theological view that land was a gift from God to the Crown. Following the Norman conquest of England, a system of feudalism developed, under which the Crown “allowed” knights to use land in return for the performance of services (doctrine of ‘tenure’). Those who received a tenure could offer a tenure to someone else; this was ‘subinfeudation’. Even in England today, we don’t own land – we own estates and interests in land which is ultimately owned by the Crown.
The first attempt at land registration was the Domesday Book, a manuscript record of a survey of much of England and parts of Wales, which was organised in 1086 at the behest of William the Conqueror. He sent his agents to survey every shire in England, so that he could have a list of his holdings and dues owed to him. The Quia Emptores of 1290 abolished sub-feudalism and the Tenures Abolition Act of 1660 abolished knight service. Henry VIII attempted a system of registration in 1535, and in 1540 he brought in the Statute of Uses Act which gave full use of land to the person using it. Various property-related reforms took place in 1832 along with the well-known Reform Act, which modernised the British political system and broadly made it more representative of the population.
Despite these developments, over the centuries, English statutory property law developed in a haphazard and fragmented manner. By the end of the 19th century, ancient laws, many medieval and some even feudal, sat alongside common law developments, and borrowed Romanistic and civil law influences. One particular contradiction was that Germanic law distinguishes between property and chattels, whereas Roman law does not. Two types of property law therefore grew up in England; one governing freehold land and the other, the law of goods and personal property.
Property was typically dealt with via settlement, binding land by a chain of settlement and resettlement from father to eldest son over generations, almost in perpetuity but without title deeds. This was linked to the feudal concepts of ‘primogeniture’ (property passing to the eldest son and ignoring daughters and other sons) and ‘entail’ (inheritance over a number of generations so that land stays within a particular family). Settled land was not capable of being sold, mortgaged or dispersed at will. As landowners were only tenants for life, they had little incentive to improve their land.
Property title deeds were difficult to read or understand. Land was often settled on several persons as tenants in common. Tenants in common could then further divide their share endlessly with other tenants in common. This meant that the likelihood of buyers encountering hidden equitable interests in a piece of land was high. At the same time, a buyer was deemed to have constructive notice of the entire chain of title, often going back hundreds of years. This resulted in costly and lengthy conveyancing processes with insufficient property title investigations, and mortgages were difficult to enforce. A system for registration of title began in 1862, but it was not universal and did not require registration of conveyances.
Many have commented on the complexity of the property law in England. In the 17th century Cromwell famously called English land law “a tortuous and ungodly jumble”. Duncan Campbell Lee, a barrister of Middle Temple, said to an American addressee of one of his lectures in 1926, who had expressed hope that he might make a joke during his lecture about the new LPA: “I am sure you will find the English law of real property one huge joke, amusing from beginning to end”.
The path to reform
Lord Wolstenholme, an English landowner and Whig politician, introduced an important step forward through the Settled Land Act of 1882. This abolished settled land, which meant that for the first time, land could voluntarily be conveyed from one person to another directly without the consent of a trustee, giving the landowner the powers of an owner. This “created a revolution” and put “very extensive powers into the hands of a person who had previously been looked upon as a usufructuary” (Justice Chitty, 1885). It was the first big step in pushing England towards different property law.
Practitioners and politicians campaigned for further improvements. Lord Wolstenholme proposed a bill in 1892 to turn land into a single indivisible estate, ensuring that even if different people had different interests in it, the land could be sold free of those interests. Lord Haldane, a Scottish lawyer, philosopher and Liberal and later Labour politician, brought in a bill in 1913 proposing further simplifications. The process was interrupted by the First World War. Reform was then taken up again in 1919 by Sir Leslie Scott, a conservative politician and judge, as part of the UK’s reconstruction programme.
This culminated in the Law of Property Bill in 1922, which, during three years of great political upheaval involving three general elections and five governments, became the LPA in 1925. It was lengthy, at 310 pages long, 191 sections and 16 schedules. Its main proponent was Lord Birkenhead, a conservative politician and barrister. Much of the drafting was done by Benjamin Cherry, a conveyancing counsel of the court. The LPA was given Royal Assent on the same day as five other important laws, including the Trustee Act 1925 and the Land Registration Act 1925 which also continue to be relevant today.
The law changed as a result of political pressure, lobbying and a changing social and industrial framework. A key driver was that the previous legislation prevented those of small means from acquiring land of their own. As a result, small landowners could not compete against larger farms. Agriculture now required land drainage and farm buildings, but farmers struggled to raise finance for this as they could not mortgage their land. Difficulties in selling land also stalled progress. Another key influence was the observation that in other jurisdictions, such as Australia and Germany, a land registration system seemed to work effectively.
The reforms did not come about without opposition. This included opposition from lawyers, who tended to benefit from the abnormally high cost of conveyancing, and who sometimes had an emotional attachment to the previous formalities. Because of the lack of transparency in the property market, solicitors often acted as brokers, and this gave them a position of power in the property market. Lord Campbell, a land reformer, despaired in 1851 that “There is an estate in the realm more powerful than either the House of Lords or the other House of Parliament, and that is the country solicitors”.
The reforms of the LPA
Lord Birkenhead said: “Though one cannot have simplicity in detail, there is a simplicity to which one can, I think, attain – simplicity in principle. Let your leading ideas be clear and few. Let each department of law have one principle. (…) Let that principle be thoroughly and methodically worked out and applied in all its parts and relations”. The purpose of the legislation was thus to simplify.
The LPA did so as follows:
- two legal estates: Section 1 reduced the number of legal estates in property to two: freehold (‘fee simple’) and leasehold (‘term of years absolute’). A fee simple means the right to enjoy a piece of land for the life of the grantee and those of their successors and heirs, which is really equivalent to permanent ownership. It also reduced the number of possible interests in, and charges over, land to five (including a land charge);
- abolition or subordination of previous types of property interest: previous types of title, such as copyhold, life estates, determinable fees, fees on condition, base fees, remainders, reversions, possibilities of reverter, gavelkind, burgage, land in ancient demesne, Borough English, manorial incidents, tenancies in common, estates of coparceners, tenancies by entireties and frankalmoign were abolished. For context… Frankalmoign was the granting of land to an ecclesiastical body in return for prayers being granted for the soul of the grantor. Gavelkind was how land had been held in Kent since Norman times, dividing land between all sons of a family over 15 years old. Manorial incidents allowed the lord of a manor to demand various items from his tenants, including “the best beast” of the land upon the death of the tenant;
- overreaching: Sections 2 and 3 provided that, subject to certain conditions, on sale of a property, most equitable ownership interests in land were placed behind a “curtain” consisting either of a trust for sale or a settlement. This meant that when the property was sold, that sale would overreach those equitable ownership interests. Those equitable owners could only claim against the sale proceeds of the property, and not against the purchaser. Therefore, a purchaser of a legal estate (being freehold, leasehold, easements, mortgages and rights of re-entry) only has to carry out a limited check of interests over a property in one place and does not have to “look behind the curtain”. Overreaching was termed “a form of magic” by Charles Harpum KC (Hon) in his well-known article in 1990;
- registration: this went hand in hand with registration under section 20 of the new Land Registration Act 1925. In 1925 300,000 titles were registered; today we have over 25 million registered titles. If a legal title is not registered, it risks becoming equitable and moving to the other side of the “curtain”. The concept is that one just has to look at the “present tense” title entries in the register, summarised by the Registrar, and not at the whole history of a property;
- land indivisible and sellable: the law of realty was assimilated into the law of property; i.e. freehold was merged into chattel real. Under section 82(3) LPA, land became an indivisible estate (except in terms of years). There was now a clear estate owner who had the power to sell a property. A “vesting deed” would authoritatively show that seller as the legal owner. A legal estate could no longer be held by way of an undivided share in land. Ancient canons of descent were abolished, including escheat (a feudal rule which transferred the property of a deceased person to the Crown) and descent to the heir; and
- mortgages: under section 117, a legal charge could now be taken over a property, giving a mortgagee a power of sale in respect of the charged estate. Previously, a mortgagee benefited from the equity of redemption, but a mortgage took the form of a conveyance of land subject to a proviso for reconveyance on repayment of the loan. Now, on a foreclosure, the fee simple vests into the mortgage, and the mortgagor becomes the real owner of the property. The mortgagee was also given the right to possess the property’s title deeds. A legal mortgage became practically indestructible if registered.
Impact on social mobility
The LPA came about when English social and political life was trending towards increased democracy and the consequent gradual reduction in the power and prestige of the aristocracy. This was shown for example with the repeal of the Corn Laws in 1846 and increased meritocracy in the army, the civil service and universities. Classical economics brought in by Bentham, Ricardo and Adam Smith, among others, undermined the concept of settlement.
As British society gradually changed from rural to industrial, the LPA represented a new importance of commercialism over aristocracy. Money could change hands more easily, wealth became more of a determinant of social status than birth, and one could move from one part of England to another more freely. British society as a whole became more dynamic and mobile as a result of the new legislation.
A charter for women
By removing the law of primogeniture, the LPA restored the wife of a husband as a rightful heir to his property ahead of, or together with, their children. The new law established for the first time legal equality of property rights in an English family. Previous concepts such as dower, which gave the wife only one third to one half of a property upon the death of her husband, and tenancy by curtesy, which allowed a man to take over his wife’s property when she died if their child was alive – the test was whether the child cried – were removed.
The LPA has continued to contribute to the fight for equality even in modern times. In recent years, there was a dispute as to whether the Garrick Club, the 194-year old exclusive private members’ club, should admit women. Michael Beloff KC (in 2022) and David Pannick QC (in 2024) argued that women could not be prohibited from being members. A key argument here was section 61(d) LPA, which inconspicuously states that, in deeds and instruments: “The masculine includes the feminine and vice versa”. Beloff argued that on this basis, women were entitled to join the club. In May 2024, the club voted to admit women for the first time.
Today’s financing transactions
The LPA forms the basis of a great deal of how we structure our transactions as finance lawyers today. Under our deeds of charge, we expressly give the security agent the right to exercise its statutory power of sale and other powers conferred on it by section 101 LPA, and we ensure that a receiver over a property is granted all of the powers conferred on receivers, mortgagors and mortgagees in possession. Mortgage lenders can take immediate possession of a property under section 87 LPA, and can foreclose under sections 88 and 89. Sections 99 and 100 LPA allow trustees to deal with properties more freely. Financing transactions rely a great deal on assignment under section 136 LPA, which governs, for example, how receivables can be sold into a securitisation structure. We also often use deeds to ensure that legal interests are created in line with the LPA requirements.
Conclusion
With major reforms of leasehold interests now on the political horizon, further change to property law is afoot, but we remain grateful for the work, perseverance and thought of our predecessors in bringing our current land law into force 100 years ago today.
References
Pollock and Maitland, History of English Law of 1895
Recent Changes in English Law of Property, Duncan Campbell Lee, 1926
The Reform of Real Property Law in England, John H Johnson, 1925
Overreaching, Trustees’ Powers and the Reform of the 1925 Legislation, Charles Harpum, 1990
In the matter of The Rules of the Garrick Club and the Admission of Female Members, Opinion, Lord Pannick KC, Blackstone Chambers, 19 March 2024
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