A question that has not only caused confusion for the public, but also the legal community. Like most English law the answer to this question has been evolving as we become more informed.
Before we tackle this question we need to make another fact known. Physical objects including land are called “corporeal” in law. Rights are called “incorporeal” as they have no physical presence and are deemed to only exist in law. To explain, if there is a right of way over a field this cannot be seen. The grass may be flattened through use, however if a path is not used at all that does not mean the right of way does not exist. A paper trail will exist confirming that the legal right exists. So, land can be both physical and a right in law (corporeal and incorporeal). Personal property can be corporeal, but also incorporeal. Many of us have pensions or annuities but not many would think that the annuity is in fact incorporeal property. Whilst paperwork exists showing the details of the annuity, it is not the annuity itself. If the policy is lost we can rely on official records to show that the annuity exists.
Now we have set the scene with some essential facts we can turn to the question at hand, are lordship titles incorporeal land or incorporeal personal property? Modern thinking, for once, follows common sense. If a right (incorporeal property) has an impact on physical land it is incorporeal land property. If it does not affect land it is not.
Lordship Titles – Land or Personal Property? Part 2;
We must now remind you of our work on the different elements of a grant of a lordship.
This came in three distinct pieces. The physical land, the rights affecting the land (fishing, shooting etc.) and the lordship itself which was the responsibility to collect taxes for the area. Throughout history all three of these pieces of property could be conveyed separately. This is why it is so essential that a complete, correctly executed and concurrent set of deeds from time of grant or time immemorial exist to show what was transferred, instead of what was “taken” or implied. A right in law must be governed by the law.
As the lordship has no impact on land the implication, if this rule is applied, is that a lordship is not a land right. This should therefore be clearly seen in our legislation and common law. However even in the Law of Property Act 1922 was this message confused? Lordships for the purposes of the Act, and just for the Act, were classified as land. This is perhaps why so many solicitors are confused and even some experts. To get closure to the answer we have to look to the HM Land Registry. Prior to the Land Registration Act 2002 there was a report undertaken by the Law Commission called, “Land Registration for the 21st Century”. This was a detailed analysis of issues that remained unsolved following on from the Law of Property Acts 1922/5. That report has made it onto the internet so please use this link > http://www.lawcom.gov.uk/app/uploads/2015/04/lc254.pdf The report is 302 pages long however the part that will interest you is four small sections 3.20 – 3.23. Those of you interested in purchasing the seigniory rights, wastes and commons with a lordship may find the rest of the report useful. It should be kept in mind that this was a discussion report and not law, however it usefully explains the reasons why certain laws changed. To find the impact of the Land Registration Act 2002 please use this link > http://www.landregistry.gov.uk/professional/guides/practice-guide-22 . So we can safely assume that current legal thinking is that, rights affecting land are incorporeal land and lordships (and their titles) are incorporeal personal property, like our example of the annuity.
to be continued.....