From 1925 to 2025

Just under 100 years prior to the great reforms of 1925, the report of the Real Property Commissioners, 1829^[1], reported: "We have the satisfaction to report that the law of real property seems to require very few essential alterations… when the object of transactions respecting land is accomplished, the estates and interests in it which are recognised, are actually created and secured, the law of England, except in few comparatively unimportant particulars, appears to come almost as near perfection as can be expected in any human institution."

Whether perfection in that moment had been achieved seems doubtful. In the 50 years, at least before 1925, there had, in fact, been continuous pressure from property owners and some law reformers to establish a system of land registration as an antidote to the slow and costly conveyancing methods employed in unregistered conveyancing. Conveyancing fees accounted for about half of the income of an average solicitor by the end of the 19th century, and their virtual monopoly on information meant that they were the ones that had the best view about property prices, and also led to many collaborations between auctioneers, surveyors, builders, financiers, and in many cases, solicitors were also serving the estate agents.^[2]

Although today is a celebration of 100 years since the great reforms of 1925, it is also right to try and put these reforms in their proper place.

First, the great reforms of 1925 were not the only radical attempt to change property law in the 20th century. The Town and Country Planning Acts of 1947 to 1962 were similarly transformative in their effort to exert control over the physical landscape and economic development of the country. As Liz Truss recently tweeted (and you can form your own view): "Yet more tinkering will not fix Britain's housing problem. The 1947 Town and Country Planning Act that nationalised land is the problem. It must be repealed.” The historical analysis may not be accurate, but it is, of course, true that the 1945 Labour Manifesto stated: “Labour believes in land nationalisation and will work towards it, but as a first step, the State and the local authorities must have wider and speedier powers to acquire land for public purposes wherever the public interest so requires.” 

Second, although as was noted in the Columbia Law Review in May 1925^[3], these "six acts^[4] consolidating the English law of real property, marks the culmination of a great and far-reaching project for the reform of that law… [bringing] together in consolidated form nearly all the statutory law dealing with real property passed since the time of Edward I “^4 It was and is not however code, and neither was it comprehensive. It did not deal, for example, with the Prescription Act 1832. It was not until the Commons Registration Act 1965 that the registration of village greens and commons was dealt with (and then not very well - which situation led to the Commons Act 2006). We also have, since the National Parks and Access to the Countryside Act 1949, a system of “registering” minor public highways on the Definitive Maps and Statement. 

As to easements, the availability of lost modern grant (which allows for a period of any 20 years use as of right to give rise to an easement) means that the 1832 Act is largely irrelevant. Even following the Land Registration Act 2002 and the attempt to reduce the number of overriding or “off the books” interests that can burden land without registration, this field of practice remains largely a common law exercise. The Law Commission's proposals for the reform of easements, which were published in its paper Making Land Work: Easements, Covenants and Profits à Prendre in June 2011, look as though they will never reach the statute book.

Equally, in relation to boundaries, although the Land Registration Acts of 1925 and 2002 contain provisions for a determined boundary to be registered in general, this is usually an argument about the effect of conveyances and transfers, but it is not always. There is a considerable body of property law that is about human interaction. Boundary agreements, for example, can be entered into between adjacent owners to clarify the position of their respective boundaries where they have become lost and confused.  In White v Alder, a case I appeared in last week, the Court of Appeal will be asked to determine whether or not boundary agreements are binding on successors-in-title, especially those who do not know of the agreement before they purchase it seems that the question. In making my submissions, I was compelled to refer to a decision of Lord Hardwicke in 1750 about an agreement made between the Penn and Baltimore families in 1732 about the boundaries of what is now Pennsylvania, Maryland and Delaware. So, it turns out that the law before 1925 was not always of academic interest. 

To the outsider, the law of property is often seen as being static. But, the history of the English law of property is that it has continued to evolve to suit the social and economic challenges of the time. English society had changed from a largely agricultural to industrial and now to a largely urban, post-industrial society. All of this has brought about changes to the workplace, the home and the family—and these changes continue even today. All of a sudden, commonhold has emerged from the horizon and, over a long period, will probably abolish the legal textbooks of leasehold issues, at least as they relate to apartment blocks! We are living in a period of unprecedented technological change. There are also challenges posed by climate change. There is AI, which already is transforming disclosure exercises and legal research. It seems likely that the law of property will be influenced by these things because they also influence wider society, although exactly how is a matter of entertaining speculation.

One legal academic has identified Decentralised Autonomous Organisations (DAO) as a future trend. These are blockchain-based collectives that make decisions and manage assets through smart contracts rather than a traditional board. For example, in late 2021, around 6,000 people met online and jointly purchased 40 acres of land in Wyoming using cryptocurrency. There was no central leader or board of directors; instead, members voted on proposals through a fully automated blockchain system. Each participant held a non-fungible token (NFT) representing governance rights—such as the ability to vote on how the land should be used. The DAO operated entirely online, with decisions executed automatically once approved by the group. Notably, Wyoming recognises DAOs as a distinct form of limited liability company (LLC), meaning a DAO in that state has legal personality. This allows the DAO to own property, enter contracts, and act as a legal entity in its own right. The model enables communities to manage shared assets transparently, without intermediaries, and entirely through code.^[5]

No matter what new challenges come our way, I would point to what Lord Sumption said in his speech entitled “The Historian as Judge”^[6]: 

"History enables us to understand many things about humankind, which we cannot hope to experience personally. Of course, its value would be very limited if we were all that different from our ancestors. But one of the things that one learns from our three millennia of recorded history is that humanity does not really change very much. What changes is not its basic instincts and desires but its capacity for giving effect to them.”

Paul Wilmshurst is a barrister at New Square Chambers.

^[1] At p. 41

^[2] Avner Offer, 'The Origins of the Law of Property Act 1910 to 1925', Modern Law Review, September 1997, Volume 40, No. 5, pp. 505–522.

^[3] John H. Johnson, Columbia Law Review, Volume 25, No. 5, May 1925, pp. 609–627

^[4] The six acts referred to are: the Law of Property Act 1925, the Settled Land Act 1925, the Trustee Act 1925, the Administration of Estates Act 1925, the Land Charges Act 1925, and the Land Registration Act 1925

^[5] Alexander Appelmans and Benjamin Verheye, Digital owners in property law in NTD

^[6] Lord Sumption, The Historian as Judge, Rolls Building, 6 October 2016