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The Conveyancer and Property Lawyer

2016

Publication Review

Great Debates in Land Law

D. Cowan
L. Fox O’Mahony
N. Cobb
Reviewed by Emma Lees*
Subject: Real property
*Conv. 503 In this second edition of Great Debates in Land Law (the previous version was published
under the title Great Debates in Property Law), the authors have sought to update their original work,
published in 2012, to reflect recent developments in land law. The analysis of the "real world" effects
of the land law system, that this discussion contains, is likely to be of interest to many, and will no
doubt provide, as is the authors’ goal, a starting point for stimulating discussion which ranges beyond
the traditional doctrinal consideration of the land law rules in isolation from their social context. For
those teaching land law, therefore, it has the potential to represent a valuable resource in an attempt
to help students to "find the interest" in land law. However, the work is not without its issues and both
the process of updating, and the selectivity of its coverage, limit its helpfulness.
The goal of this work, unlike most land law textbooks, is to provide a contextual explanation of the
shape and development of the legal system, rather than an explanation of the precise legal rules. In
this respect, it certainly ought not to be considered a traditional textbook, nor a replacement for one,
but rather an additional resource providing students with an alternative perspective on land law. The
first chapter of this work, in setting out a variety of principles which jostle for primacy within the land
law system, is a good starting point for those new to land law, asking themselves, "why should I
care?". The themes of alienation, citizenship, exclusion, rationality, responsibility and space are in
themselves a departure from the traditional goals which are usually said to form the principled
underpinning of land law (such as efficiency, security of interest, etc) and as such are both
controversial, and inevitably (if deliberately) under-inclusive. In excluding the traditional, there is no
doubt that the justifications for such a traditional approach are underserved and perhaps
misrepresented. However, this departure from the norm, and the expected, is the main strength of this
work, and its authors are to be commended in encouraging their readers to think in a more socially
sensitive way about the legal rules with which the book is concerned. They challenge us to move
beyond the "‘taken-for-grantedness’ of the discipline’s norms"1 and in this they must be praised.
There are, however, some issues with this work, and the main one, in this reviewer’s opinion at least,
concerns coverage. In eschewing the traditional principles and concerns of land law, the authors have
also eschewed coverage of some of the important legal issues that have emerged in the five or so
years since the last edition. The authors are very open that the goal of their work is not to provide a
comprehensive analysis of the subject, but rather to provoke debate, and to stimulate consideration of
the social, economic and moral effects of the land law system as it stands. However, they do this in
an occasionally uneven-handed *Conv. 504 way. This is clear, for example, in the Housing and
Equality chapter. Equality in housing is an important issue, but it is far from the only significant issue
in relation to the provision of housing the era of austerity. In particular, the reforms to private sector
renting introduced as part of the Deregulation Act 2015, and the Localism Act 2011 changes to public
sector renting (and the forms of non-secure tenancy which can emerge, such as the flexible tenancy)
are not discussed in detail, and these are at least as important to the practice of housing provision as
is the Equality Act. Instead, the "great debates" noted by the authors are often debates surrounding
their own research interests (as reflected in the recommended readings also). This is not necessarily
problematic in itself, but it reduces the usefulness of some of the discussion as it is, on occasion,
coverage of the marginal, rather than the central issues, at play in the current operation of land and
landlord and tenant law. It is also a pity, albeit one likely attributable to the inevitable gap between
writing and publication, that the provisions of the Renting Homes (Wales) Act 2016 and the Housing
and Planning Act 2016 are not covered in this work. This is not a criticism of the authors, but it would
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have been interesting to see discussion of these recent and highly significant developments in the
overall analysis of the provision of housing in the era of austerity politics.
Similar comments can be made about the chapter on land registration. Its central goal is to consider
whether a shift to land registration and state-guaranteed title alters our relationship with land. This is
an interesting issue, and one which forces us all to consider the impact of land registration in a wider
sense. However, the discussion of state guaranteed title fails to reflect the fact that developments in
the recent case law make it clear that the 2002 registration system does not in fact provide a clear
guarantee, or at least it does not provide the same guarantee envisaged at the time of the drafting of
the 2002 Act.
Finally, a small point, but perhaps an important one given the goals of this work, is that the further
reading sections appear not to have been substantially updated in this new edition. This is
immediately obvious when the land registration chapter is considered, for example, where the
enormous amount of scholarship produced since 2012 on the question of the conclusivity of the
register is not alluded to in the further reading, despite the question being the subject of "debate 2" in
this chapter. Similarly, the suggestions in Ch.8 concerning human rights were all written in 2012 or
earlier. Given the really significant developments in the "property law versus human rights law"
discussion since 2012, it is a shame the newer scholarship on these topics is not reflected in the
further reading.
This book is at its strongest when it considers topics central to its authors’ own interests. In these
chapters, it provides a unique perspective on traditional land law issues. The discussion of squatting
in particular is thought-provoking and provides an excellent analysis of the relationship between
squatting, adverse possession as a means of acquiring title to land, and the criminal law. However,
there are elements of this work which ought to be treated with caution, and perhaps as a result of the
"updating" rather than re-writing process that new editions undergo, might perhaps be considered to
be out of date, not strictly in relation to what the law is, but rather in relation to the way the law can be
seen to be developing. These issues should not discourage use of this work, but do mean that its
discussion should be handled *Conv. 505 with caution, and with the footnote that many would argue
that the law is not developing in the way presented here.
Emma Lees
Conv. 2016, 6, 503-505

*. University Lecturer in Environmental and Property Law, University of Cambridge.

1. D. Cowan, L. Fox O’Mahony and N. Cobb, Great Debates in Land Law, 2nd edn (London: Palgrave, 2016), 12.

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