Dubery, L --- "Restoring real property" [2009] LegEdDig 19; (2009) 17(2) Legal Education Digest 12

• Restoring real property

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Restoring real property

L Dubery

2 Web J Current Legal Issues, 2008, pp 1–13.

Land law has a fearsome reputation: ‘It has the reputation of being the most boring and the most difficult – difficult because it’s boring – course in the curriculum’. This view has been endorsed across the common law jurisdiction: ‘land law is ... the traditional horror story of them all’, ‘the ugly duckling in a law degree’, ‘a difficult and dry (boring) subject’, ‘an inscrutable and anomic experience’. Bad enough, but worse that these comments were made based on experience of land law by its friends, the property tutors, and worst of all that the reputation has been allowed to dominate without any comprehensive evaluation of the attitudes, beliefs and perspectives that led to it. Widespread assumptions of land law’s difficulty have entrenched barriers, severely curtailing real property as a subject for study and concealing that it can offer richer learning opportunities than any other foundation subject. Real property is the social and legal bedrock. If it is to be restored as the enriching and fulfilling subject that it deserves to be, it is of fundamental importance that we understand and deal with the reputation problem. If there are significant issues with real property, they must be identified and constructively addressed, not simply labelled as problematic. By subscribing unquestioningly to value judgements about land law’s reputation, all we teach students is that land law is archaic, irrelevant and ineffective. And that, unfortunately, is one lesson that many report they have learned very well.

A popular approach to modern study is to reconstruct real property within the strategies currently illustrated in many other law textbooks, such as definition boxes, case summaries, questions and answers. It supports the taxonomic exposition of institutional rules characteristic of traditional property teaching. There is no new intellectual vision. Revision, it is suggested, should arise from analysis of the subject itself; its advantages and disadvantages for study and the contingencies of the contemporary legal and social environment in which it operates. Based on that hypothesis, this research excluded notions that exist beyond specific property reasoning, and drew only on ideas and institutions that are internal to property.

Land law is characterised by inherent structure, clarity and method. The systematic approach facilitated by the subject matter allows each student to progress on a solid basis, and if necessary according to his own capacity. It is important to exploit the coherence of real property.

Students find subjects like criminal law and the law of tort initially more attractive and ‘user friendly’ because their ideas are familiar. Their principles too seem easier at first, but their complexities emerge as the student progresses. Land law is the other way around. If not dealt with, its alien language and ideas can be a major deterrent, but the student who perseveres will soon recognise the benefits of land law’s logic and structure.

The student experience was explored through focus groups of volunteer LLB and Graduate Diploma in Law students held in alternate weeks over two terms in one academic year. The groups chose a wide range of themes, one of which was discussed in each meeting. We explored ideas about it and worked out strategies. These were tested by delivery to the entire cohort, and evaluated in general feedback with the group the following week, using a feedback form the students decided to design and use. Wider feedback was also obtained from the whole cohort each term. The most popular strategies, from which the students felt they learned most, concerned anything with a visual, physical or interactive basis: ‘The use of props and things is really helpful’, ‘I felt drawn in’, ‘It shows us the law’, ‘It makes it more interesting’.

To discover the condition of delivering real property, I sent a questionnaire to property teams at fifty six Universities. There were twenty five responses. The questionnaire investigated institutional issues about the delivery of real property, how it was taught and the tutors’ views on property education. One of the most interesting observations was that real property is rarely a primary interest: ‘People teach it because they have to rather than as their major research and teaching interest’, ‘Lack of academics for whom land law is FIRST subject’. This may explain the relative lack of innovation.

Most land law courses seem to have a vocational emphasis, on the acquisition, transfer and protection of land, with land registration placed towards the beginning of most course contents. Registration is without doubt a very important subject. Most current textbooks also deal with registration early. However, there is no necessary structure to a land law course and registration is no less important for being dealt with later, not least because it draws on knowledge of the whole of land law.

It is easy to see how beginning with registration can affirm student preconceptions of land law’s difficulty. As a relative newcomer, registration is an interloper that is inimical to the historical development of the law. Seeking to reconcile registration has challenged more than a century of judges, lawyers and legislative architects.

Both tutors and students put language (‘archaic terminology’) as the greatest problem with land law, closely followed by the tutors with lack of experiential connection (‘contextually remote from students’ lives’). Other factors cited include: preconceptions of its difficulties (‘reputation – students assume it will be difficult, therefore it is’), abstraction (‘rule based approach is abstract and conceptual’), alien ideas (‘what most people think they know about land law is wrong’), the wealth of history, the complexity of rules (‘very technical’), the jigsaw effect (‘need a wide command of many subjects before understanding one’), and the ‘aridity’ of textbooks.

An important part of the enquiry was the investigation of the causes of land law’s reputation through research into its educational history. The decision to focus the research on literature arose from the special relationship that exists between real property and its literature. Real property exists in law as an intellectual construct. It is a set of fundamental ideas, contained in a property rhetoric that has continued in common law discourse for over eight hundred years.

Modern real property law and its educational literature began in 1925 with Cheshire’s Modern Law of Real Property. Cheshire remained the dominant work of its generation, and is still recognised as one of the most important texts, now in its 17^th edition. It was written to explain the new land law following wide reaching statutory reform in 1925.

Cheshire’s aim was ‘to prepare a book that would not merely record the changes but would present the law as a composite whole ... to enable the students to envisage a legal system which is, in many respects, widely different from that envisaged in existing books’. Cheshire easily gained centre of the education stage, marking the beginning of a new era in land law, its writing and education.

Cheshire reflects the spirit of the 1925 legislation which, rightly or wrongly, was viewed as a triumph by its contemporaries. The problems caused by a system that located the law in a private property ideology, marginalising the wider traditional values that were fundamental to land use, would take another generation to appear.

The next generation of property texts was, in one sense at least, ruthlessly pragmatic. The first text was again dominant: Megarry’s Manual of Real Property, published in 1946. The new preoccupation in the textbook tradition was to get students through examinations; in the second edition Megarry describes how ‘examiners and authors ... pursue one another in a vicious circle’ in the post war world.

In consequence, the Manual is black letter law without Cheshire’s black letter intellectualism. It is a practitioner approach that defines the legal rules to be learned in order to be applied to factual situations, and the study of law for purely practical purposes has no necessary need of a normative base for wider property thinking.

The Manual was joined in 1957 by Megarry and Wade’s The Law of Real Property, which became a popular student and practitioner text, now in its seventh edition. But it was the Manual (currently in its eighth edition) that was especially influential on property writing. Other forms of property writing were derived deductively from it, a pattern that appears to have obliterated any more innovative thinking how property could be delivered to the new widening audience of law students. The Manual is most reminiscent of Cheshire in its adoption of the same historicist approach, but by the mid twentieth century, that had begun to look more like antiquarianism.

The preoccupation with learning in order to pass examinations, reducing legal studies to a matter of learning rules and cases had a severe effect on real property. Whatever the criticisms of the traditional orthodoxy represented by Cheshire, it did at least create a real property world picture through the scholarly exposition of the nature and historical development of general principles. When property writing was reduced to the taxonomic exposition of legal rules as compartmentalised abstractions, it acquired a pure learning and communicative efficiency but the idea of real property as a dynamic phenomenon in existing in legal thought and usage was lost.

By the mid century, the courts were increasingly facing claims from persons with no proprietary interest seeking residential security from a law that had all but excluded the use value of land. A large crack had riven the land law edifice. There was considerable judicial activism to close ‘the social gap’ by manipulating the conceptual formalism of land law to assist persons who fell outside the narrow property taxonomy. There was a marked shift in judicial thinking from the real property rationalities of Cheshire and Megarry, based on realising and preserving an objective set of values about land, to a more dynamic, functional approach based on accommodating changing patterns of behaviour relative to land.

Two schools of thought, socio-legal studies and critical studies, were concerned with contextualising real property and set about achieving this by setting the law in various normative frameworks. The difficulty was that these schools of thought were not specific property initiatives, but were larger jurisprudential movements being applied in the real property context. Unlike the judges, their proponents were not confronted with the courtroom but could engage with sociological theory at an academic remove. To argue the inclusion of morality was a trajectory to property understanding, and attempts to be sociological that were in reality philosophical could only impose yet more abstraction on the law.

There always comes a time for reacting against a classic, and a body of articles concerned with revising real property education at this period focused their criticisms on ‘the Cheshire tradition.’ It was ‘individualistic and evolutionary’, ‘historicist and conceptually formalist’, and created ‘a dominant and even suffocating ideology in the teaching of land law’.

What is generally recognised to have become the dominant student text in the third generation began its life in what appeared to be a strikingly visionary text, a book entitled Real Property and Real People, written by Gray and Symes in 1981. Its professed aim was to avoid the teaching of land law ‘as if it had no reference to real everyday life’ and to follow the thinking of Kahn Freund that legal study should be directed towards ‘the social purposes of the law’.

Real People received mixed reviews and was a step too far from taxonomic exposition to gain a place as a mainstream student text. In 1987, it metamorphosed into Elements of Land Law, shortly to go into its fifth edition. The greatly increased wealth of authority in later editions, much of which is from the USA and the commonwealth, together with a still strongly individualistic approach makes Elements more useful as a work of reference than a teaching text. In 1999, the third book in this family appeared, Land Law. Now in its fifth edition, this was the most widely used textbook reported by the tutor respondents. While strong on values in land law, it is interestingly reminiscent of the Megarry tradition in its reductionism from a larger text, layout and directional style.

The old property writers spoke of the difficulty of real property law, especially the highly technical nature of property rules as they accommodated all the new nineteenth century demands on property that were overlaid onto the existing law: ‘the increasing difficulties of Real Property Law’, ‘the technical complication and difficulty of our laws’, ‘vast masses of antique and unintelligible law’; ‘intricate and abstruse technicalities’. By the mid twentieth century, most writers concurred that it was no longer necessary to look back to that old condition of the law. Yet it is in this period that the idea of land law’s reputation becomes entrenched.

Significantly, most of the respondents’ references to land law’s difficulty referred to the experience of studying land law. They said, for example, that the abstraction of land law made it problematic as a teaching and learning subject. This paper has examined how that quality of real property was affirmed in the 1925 tradition, and how it was variously and emphatically reinforced through three distinct generations in the textbook tradition: the intellectual expository tradition, the taxonomic expository tradition, and the sociological tradition.

But academic educational property writing begins much earlier, with the beginning of law as a taught academic subject. As Vinerian professor at Oxford, Blackstone delivered his inaugural lecture, ‘On the Study of Law’, on October 25th 1758. He begins with his audience’s world picture, and he shows them the legal features in their landscape. His objective is to explain the law as it related to them, whoever they were: ‘its particular uses in all situations of life’. By the twentieth century, something very different had happened in property writing. The students’ own world had vanished. He had been yanked out of it, and dropped into a legal world of property, sometimes described as ‘a world of pure ideas’. The features in this world are alien ideas, arcane language and it bears very little resemblance to anything they know elsewhere; not surprisingly, its inhabitants tell us they do not like it very much.

Even the student who has bought and sold property will probably know nothing of the subject when he comes to it, and his whole experience is in our hands. This is illustrated by one of the tutor respondent’s description of his own experience of studying land law: ‘Despite its reputation for difficulty, I enjoyed it. Moral? It’s all down to the lecturer’. It is not the objective of this paper to suggest how land law should be taught. There are, however, two things that might be considered in devising courses that seek to restore teaching and learning real property as a fulfilling and enriching experience.

Teaching must be based on the contemporary prevailing idea of property. It is preferable to learn from past ideologies rather than criticise them. The legal parameters are constantly shifting, and the tyranny of a narrow perspective has been clearly shown. More than half a century of case law has made clear that real property has moved towards a pluralist idea; it exists as a phenomenon to be constructed in response to the fast changing demands made of it. Blackacre or Whiteacre, existing as something of a cross between Agatha Christie and Cluedo, operated in the black and white age of property rights as defined in ss1(1), (2), (3) of the Law of Property Act 1925. A wider understanding of property and property thought provides students with the flexibility to deal with the land law problems of the future.

It must be said that the marker of modern land law is neither a smoke ball in the nineteenth century, nor a snail in the twentieth century, but William the Conqueror in the eleventh century. Combined with the importance of land as the main source of wealth for most of its history, this has given real property law qualities that distinguish it from other subjects. Some qualities seem ostensibly disadvantages, and the failure to develop a policy in respect of them has built them into barriers to entry. In this category are arcane language, lack of experiential connection, abstraction, and history. But these qualities are only problematic if not dealt with, and all can be turned to advantage. It is very easy for example, to develop language strategies that avoid the philological and etymological approaches adopted in many land law courses which are as meaningless to the students as the word they seek to understand. All this does is deaden the experience of language, and in so doing destroys the opportunity to learn about the precision value of language. It is equally easy to deal with lack of experiential connection. The tutor only has to manufacture the situations most easily imagined by the student, either in the context of land or analogously, to give him the inbuilt referencing system he needs. The inherent logic of land law means that in many doctrines the student can then be led towards formulating the rules based on his own common sense approach to that situation.

Other qualities of real property are more clearly advantageous in the first instance. Real property situations provide wonderful opportunities for discussion. Especially, there is the opening into the jurisprudence of the second half of the twentieth century; how the formal, highly defined numerus clausus of property rights can be brought to bear on the infinite variety and changing nature of situations that they must regulate, particularly in respect of persons who do not order their property affairs in the image of the law. This facilitates the wider thinking of a liberal education and encourages intellectual exploration and development that reach far beyond the bounds of taxonomic exposition.

A bad reputation is not a necessary condition of land law, and understanding its legacy enables us to ensure that we do not reinforce twentieth century chains with twenty first century steel. We can do no better than restore real property on the foundation stone of the academy as Blackstone laid it down: ‘If either [the tutor’s] plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon this most useful and most rational branch of learning’.