NETLAP

Network of Teachers of Land & Property

Lecturer/Senior Land Law Lecturer Opportunity

Manchester Law School is seeking to appoint a Lecturer or Senior Lecturer with academic experience in Land Law to teach Land and Property units in the School’s undergraduate programmes and GDL.

The School is interested in appointing colleagues with an existing, or potential, research profile. There is strong commitment to supporting research within the Law School and some interesting possibilities for inter-disciplinary and external collaboration.

Have a look at the link for further details: https://www.jobs.ac.uk/job/BUZ567/lecturer-senior-land-law-lecturer

Modern Studies in Property Law One Day Event

Keele Law School is delighted to host the next Modern Studies in Property Law (MSPL) 2019 One-day Event

The event will take place in Keele Hall on Thursday, 11 April 2019.

Over the course of the day, a variety of speakers will present their work in progress within a supportive and informal environment. Each mini-workshop will include an opportunity for feedback and general questions and will be chaired by a colleague who will introduce the papers and take a lead role in the discussion which follows.

The event is an exciting opportunity for anyone with an interest in property law scholarship to meet, discuss their current research and hear more about a wide range of property law research projects at various stages of completion.

Not presenting a paper? Come and Join us for the day…

This event is free for all attendees, but does not include travel and other associated costs. Refreshments and a light lunch will be provided.

Please note that places will be allocated on a first come, first served basis.

Download our programme here:

MSPL at Keele 2019 Programme

Register here:

Book your place at MSPL Keele

Any Questions? Please contact a member of the team at Mspl2019@keele.ac.uk

 

Re-Imagining the Teaching of Land Law

by Emily Carroll, University of Birmingham, commissioned and produced by Oxford University Press.  

‘When you sit down and map out a subject for the first time that is a work of imagination. You have to make choices about how to bring some order [to the content]. But it’s also important to re-imagine a subject.’ Professor Robert Lee, Head of Birmingham Law School

In September 2017, 45 land law enthusiasts (both teachers and practitioners) attended a workshop at the University of Birmingham to discuss current and emerging approaches to teaching this core area within the law degree. The day took the format of 14 short talks by delegates, interspersed with Q&A sessions and more informal discussions in the breaks.

The workshop was funded by Birmingham Law School’s Centre for Professional Legal Education and Research and organised by Emily Carroll, who co-ordinates the School’s land law stream, with the purpose of reflecting on the changes in government, society, and the market which shape the organisation, aims, and delivery of legal education, particularly land law. The workshop coincided with the beginning of teaching term, when land law academics were revisiting their teaching materials and considering their approach for the new academic year.

Three key themes emerged from the day’s discussions and talks:

  • Pressures on learning outcomes
  • Evolving assessment methods
  • Developing innovative approaches to teaching

Pressures on learning outcomes

Broadly summarising the various tensions currently or soon to be exerting pressure on law schools in an initial overview, Emily Carroll spoke, on one hand, of the massification of higher education and the expectations of law degrees created by rising fees, student debt, and a focus on employability, and on the other, about the idea of law as a broader, traditional liberal arts degree.

Emily made the first mention of a topic that would recur throughout the day, raised by nearly all the speakers and discussed at length in the Q&A sessions and breaks: the change proposed by the SRA to the stage and method of entry into the solicitors’ branch of the legal profession. The SRA propose that this would not be marked by the gaining of a law degree (or equivalent), but by the passing of independent exams (the Solicitors Qualifying Exams – ‘SQE’) which would be taken post-graduation, akin to an American bar-style exam.

Emily noted that the significance of this change would be twofold. First, pinpointing an independent post-graduation exam as the entry point into the solicitors’ branch of the legal profession means that it will no longer be necessary to undertake a law degree (or conversion course) to meet the minimum academic requirement to qualify as a solicitor. Secondly, it raises questions regarding the perception of a law degree: to what extent will prospective law students expect their degree to teach them the content of the SQE? It became increasingly clear throughout the day that, as Emily summarised, law schools across the country are grappling with these questions and the best way to balance dual messages and purposes: offering a traditional liberal arts education but potentially also – or alternatively – needing to prepare cohorts for the SQE.

‘We’re all on separate boats navigating the storms, and we’ll have to make individual decisions but I hope we’ll do it collaboratively […] and come up with something that really meets all our ends.’ Professor Antonia Layard, University of Bristol

Many speakers and delegates suggested during the day that law schools in the upper quartile of the Russell Group were unlikely to make significant changes to their curricula in response to the SQE, although subjects such as company law and wills and succession may become more prominent and, in the case of the latter, more widely taught. Michael Draper from Swansea University observed that some institutions will continue to offer an academic experience as part of their law degree while others will include a practice-based pathway at the expense of ‘academic’ options and suggested that these decisions would be driven by market forces and student choice.

In his talk, ‘The Customer is Always Right’, Mark Wonnacott QC from Wilberforce Chambers put forward views that were counter to most others in the room. He saw a need for greater alignment between academics and practitioners, given that the legal profession is the recipient of the ‘product’ of academic teaching (the students). Mark detailed an extensive list of topics he thought the syllabus should cover and argued that law schools should aim to give students a wide-ranging knowledge of the whole landscape of land law, rather than in-depth knowledge of a particular area. (Later in the day, Graham Ferris of Nottingham Trent University noted that whilst land teachers would happily devote ‘50% of the degree’ to land law, this is not possible, and teachers have to select material carefully so that it is coherent, considering both the discipline and development of the learner.)

‘Personally, I am optimistic – I suspect that more of you are teaching all the black letter law we need and we just don’t know about it, so if SQE 1 widens our gene pool, so much the better.’ Mark Wonnacott QC, Wilberforce Chambers

Mark recognised that academics would not take a positive view of the idea that the purpose of a law degree was to provide a ‘product’ for law firms, given discussions around the consumerisation of higher education, and recognised that legal practitioners are not best placed to provide legal education, but for him, the ‘worst kind’ of student arrived in practice with huge ‘unexplored hinterlands of land law’ and instead, knowledge about sociological and anthropological approaches. He asserted that these approaches would develop good family lawyers, but land lawyers need to know all the rules in order to exploit the law to achieve a successful outcome. For this reason, Mark was in favour of the SQE exams, standardisation, and the publication of results, as he felt they would allow professionals to assess which universities were teaching in the ‘right’ way, but he suspected that Russell Group universities would probably escape scrutiny and the largest change of approach. He anticipated that the scrutiny would mainly affect the middle- to lower-ranked universities.

A number of speakers noted that the SQE syllabus omits certain key traditional elements of land law teaching, such as estoppel and adverse possession, and instead includes an extensive list of items relating to conveyancing and property taxation – formerly the remit of the Legal Practice Course – exemplifying the tension first highlighted by Emily Carroll between the academic (liberal arts) and the practical legal education. Whilst the general consensus amongst attendees was that no one wanted to teach a collection of the least interesting aspects of conveyancing, Abigail Jackson from the University of East London pointed out that conveyancing is a practice largely undertaken on standard form contracts by paralegals and licensed conveyancers, and that property litigation (the resolution of disputes) might better engage students with the ‘difficult, nitty gritty stuff that is land law’.

‘The law doesn’t allow for these nice simple answers most of the time [… The SQE] has the potential to rob us of the intellectual creativity at the heart of […] English land law. We will be left with a generation of lawyers who can simply answer set questions on a TR1 form but can’t tell us about the concept of a trust or why a court might be wrong.’ Martin George, University of Leicester

It was widely agreed that a law degree would not become a substitute for the Legal Practice Course given, for instance, the relatively large numbers of non-law students entering the profession each year. The wider question is therefore how to help students engage with the messiness of this area of the law, and there was consideration of how this has shaped some universities’ curricula.  For instance, Emma Waring from the University of York saw the use of problem-based learning at York Law School as meaning that the university is able to simultaneously teach black letter law and address ‘big picture thinking’. Martin George from the University of Leicester strongly rejected the idea that a law degree curriculum should be designed solely to enable students to acquire a ‘functioning legal knowledge’ that allows them to produce a ‘right’ answer to ‘client-based problems’. He suggested that teaching land law should be about facilitating student curiosity, and developing both intellectual creativity and the ability to argue. These were sentiments echoed by Ben McFarlane of University College London, who considered that his approach to teaching land registration was to foster ‘creativity about interpreting those rules, as even if you have a judge who is sympathetic you need to give them a way of getting to that point and reaching the result that accords with basic notions of justice’. Elizabeth Cooke, Principal Judge of the Land Registration Division First-Tier Tribunal, who brought the event to a close, noted that better land law teaching would lead to better legal advice and timelier, more cost-effective negotiation and resolution of issues.

‘Being involved in a land dispute is a terrible situation […] Many people could have been saved from ending up in court by just 10 minutes of good legal advice.’ Professor Elizabeth Cooke, Principal Judge of the Land Registration Division First-Tier Tribunal

Although the debate largely focused around the reception of the SQE, there was also background discussion of the subject-level TEF that looms on the horizon. There was a concern amongst some, including Warren Barr from the University of Liverpool, that this could potentially have a bigger influence on the syllabus than the SQE and pose a more significant threat of prompting a ‘popularity contest’ in the metrics between law schools.

Evolving assessment methods

Whilst the day’s discussions were in many ways framed by the introduction of a new assessment, the SQE, many of the speakers spoke of curricula reviews that had been undertaken or were ongoing at their universities. Whilst some speakers acknowledged that engaging their students in the subject did not mean a change from the ‘Street v Mountford nature of the exam’, others, including Warren Barr, suggested that change was crucial in order to engage not only students but also their teachers, to avoid the pain of marking piles of essays in 15-day turnaround times.

‘For me, the student issue with land law – where the fear comes from – is that it’s a very technical subject […] There are wrong answers and there are correct answers in the sense of application of rules, which they’re not used to from other subjects.’ Professor Warren Barr, University of Liverpool

Warren spoke about an internal curriculum review at Liverpool, which had been undertaken a few years ago in response to growth in student numbers and was intended to prevent ‘the repeat teaching’ that bores teachers and students. Warren also spoke of students struggling with the ‘application’ of land law in a final exam and that explained that this had prompted a review of the delivery method, to replace seminars/tutorials with individual, marked exercises with individual feedback. Similarly, Sandra Clarke from the University of Greenwich spoke of keen, assessment-driven students who produced a huge amount of content for marking that was illegible. In part to address the volume of marking to work through in a narrow window but also to engage students in thinking about land law in a different way, Sandra created an online multiple choice exam.  Students were allotted an eight hour window to answer eight multiple choice questions (MCQs).  The element of the assessment given over to the MCQs amounted to a small fraction of the students’ overall second year summative grade, but this gave Sandra the space in the curriculum she needed to develop a new form of assessment.

Sandra spoke of trialling this assessment and the research she undertook to help her write the questions. Using an example of a question based on a register of title, she shared that the key to writing a successful question is to create a good ‘stem’ that includes the background, context, and facts of the question, following this with the ‘lead in’, which is the actual problem set to the students. The students are then asked to identify the correct answer from four possible choices, the incorrect choices consisting of ‘distractors’. Sandra discussed the difficulties in drafting questions that ensured students were tested on their understanding of a concept and their ability to apply this, rather than their recall of set information. It was widely acknowledged in the ensuing discussion that there was skill involved in drafting an MCQ that was tricky enough to challenge the most able students. A common theme amongst those with experience of trialling new assessments was that it was difficult and time-consuming. Whilst no one spoke of an appreciable time saving from their trialled method, the sense was that they enjoyed the creativity associated with developing a new type of assessment and the extent to which this engaged their students. Sandra noted that a review of the students’ marks showed that they were concentrated between 65-98, which has opened up the first class bracket and has been positively received by students, but in the coming year she plans to make the questions ‘all or nothing’ in accordance with the proposed SQE assessment, i.e. no marks for partly incorrect answers. Michael Draper also spoke of using MCQs for assessment purposes, as did Warren Barr, partly as a formative feedback aid and also as a ‘reward’ element of summative assessment.

Adam Baker from the University of Leeds described an internal push to diversify assessment, with an eye on trying to reduce time-intensive marking loads. He had undertaken a review of the assessment methods employed on LLB programmes across the country and found that they remain centred around traditional essays and exams. In contrast, Adam has developed a presentation assessment at Leeds which accounts for 25% of the module mark. Students are tasked with presenting their answer to a set land law question and are encouraged to work in teams to develop their critical thinking and individual arguments. Adam spoke of the difficulties of finding the balance between developing students’ knowledge of land law and incorporating the teaching of presentation skills. He found that students needed support in developing these skills and that it is not enough for a student to be ’brilliant’ if they are not able to present. Whilst Adam acknowledged that setting up a new innovative assessment was time consuming, and relied on support of colleagues in sharing ideas and collaborating to adapt and improve the assessment, his overall sentiment was that the change was positive.

Adam commented on the extent to which assessment influences everything that students do and noted that teachers’ ability to change their students’ experience of the subject by altering the assessments was interesting. Adam explained that having to orally present their thoughts on a given topic not only helped students to engage but also improved the quality of their thinking, and this was a point supported by student feedback (he shared a quote from a fellow academic which observed that ‘Improving the quality of presentation actually improves the quality of thought and vice versa’) and also made by other presenters, including Michael Draper, who commented that he did not fully understand land law until he had to lecture on it himself. Adam found that as his new method of assessment required students to be able to articulate the law and their argument clearly, it also proved a good indicator as to who would be successful in graduate employment.

Warren Barr also thought that making changes to assessment, specifically the feedback process, had better engaged his students and helped them to identify where they could improve their work.  His approach was to withhold formative marks until students had engaged in peer reviewing others’ work and then marked their own work, providing a justification for the mark given. The students’ actual marks were then released. Warren found this to be time intensive but extremely useful.

Developing innovative approaches to teaching

It was widely acknowledged that registration is the foundation of land law teaching. Amy Goymour of the University of Cambridge acknowledged that this was hard to teach because ‘it’s constantly changing, debated and becoming more and more controversial’ and these are all reasons which make students think it is dull and difficult, but she and Ben McFarlane pointed out that these are the same reasons cited by students for wanting to study law. Warren Barr made the point that ‘land law is the only subject that suffers from being taught on the undergraduate law degree’ and that having lived some relevant experiences would help students engage better with the subject. Graham Ferris agreed that land law is a topic that needs to be brought alive by wider societal values; it is impossible to teach land without them. Delegates enjoyed hearing about the different approaches taken by speakers to engage their students.

‘Law is difficult – it’s meant to be difficult. You need good grades to get onto the course to do it. It can lead to well-paying professions […] It’s important for property law to not make [apologies] but at the same time to help students develop the skills they need to understand these difficulties and [progress] in the subject.’ Professor Ben McFarlane, UCL

Amy and Ben considered technical cases such as Scott v Southern Pacific Mortgages where students need to grasp the big picture – that someone may lose their home – but in order to assist a judge who is sympathetic to their case to reach a favourable conclusion that accords with basic notions of justice, also need to be creative when interpreting the relevant rules. Similarly, Martin George spoke of needing students to develop the intellectual creativity not to simply accept existing judgments – to consider why a court might be wrong. In many ways, these ideas were not so far divorced from Mark’s emphasis on the potential of land law to ‘change society and help the oppressed, but you can’t win the game unless you know all the rules’.

Emma Waring spoke of engaging students through the stories of ‘the sheer human nastiness, tragedy and cruelty’ that pervade land law and make it so engaging, and noted that students particularly enjoyed a Valentine’s Day lecture she delivered that focused on co-ownership. The University of York’s problem-based learning approach aims to represent the ‘messiness’ of real life – to engage students through the complexity of the material and by demonstrating that real life problems aren’t neatly compartmentalised. Plenary lectures that supplement the group work on problems also help to grasp student attention; in these, lecturers including Emma discuss wider themes, such as developed vs developing countries and the transformative power of land law.

‘What we’re thinking about is the extent to which you can ask the big questions but still know the rules. You’re not going to get through our land law exams without understanding [the key cases] and how they hang together […] but you also have to understand that they’re a set of rules […] There’s nothing natural about them.’ – Professor Antonia Layard, University of Bristol

Antonia Layard spoke of engaging students in lectures by asking them to calculate how much profit their landlord is making from their student house in Bristol, drawing on wider themes from news articles as to why ‘Generation Y’ are renting and not buying. Antonia uses the Flintstones to liven up her teaching and draws on modern day concepts and examples from the tabloid press. Further, Verona Ní Drisceoil from the University of Sussex spoke of implementing a new pilot film project that aimed to help students understand and engage with the broader implications of land regulation. Verona created a series of short, people-focused video clips showing different perspectives and voices associated with land law, for instance a solicitor working for the Housing Trust in Brighton speaking of the implications of the Legal Aid cuts. Snippets of the videos were used in lectures and incorporated as part of the online seminar preparation on the VLE to help put the subject and reading in context.

‘[Whereas other types of litigation can usually be resolved with money], land is necessarily unique […] and that makes it much more difficult to resolve any disputes. It means that you have winners and losers […] When you look at land law you often realise that it’s relational […] There’s this notion of property as a story.’ Abigail Jackson, University of East London

Employability emerged as one key method of ensuring student engagement. Warren Barr illustrated this through the re-branding of a module that had been called ‘Land Law II’ and had little take-up from the students. Once re-labelled as ‘Commercial Property’, with emphasis placed on the commercial aspects of the topics taught, take-up of the course increased from approximately twenty to eighty students. This idea was echoed by Abigail Jackson, whose point was that few students would go on to be conveyancers. She argued that rather than engaging with land as ‘a commodity to be bought and sold’, students would be better engaged by gaining insight into the complexity and messiness of land law from a litigator’s perspective.

Oxford University Press is committed to keeping pace with the changes in this area and developing resources that support and help to disseminate the most exciting, effective new approaches to undergraduate land law teaching. If you would like to stay informed about the latest developments on our land law list, please visit www.oxfordtextbooks.co.uk for more information and sign up for updates here.

Introducing the Virtual Land Law Field Trip Project

by Dr Verona Ní Drisceoil, University of Sussex

This blog post provides a brief introduction to the concept, development and implementation of the Virtual Land Law Field Trip Project @Sussex. It also revisits some of the key arguments in favour of the incorporation of the ‘visual’ in our teaching.

The concept

The Virtual Land Law Field Trip Project @ Sussex grew out of a simple desire to take students out of the lecture theatre and on a ‘field trip’ through the use of bespoke videos. In terms of early conceptualisation, the project sought to offer a counter to traditional lecture and seminar modes of instruction and to provide a means – through video – to move further into reality and help our students in their spatial understanding of the subject matter and to see, and feel, the operation of land law in practice.

Once filming began however the primary objective of the project shifted somewhat. The project, and ultimately I, became driven by a desire to provide a space within which to challenge the narratives of, and in, the land law curriculum. The primary objective was no longer therefore merely about using the visual to enhance “response strengthening and information acquisition” (Mayer, 2009) but it was also about building another platform for constructive and deep learning and to tap into our students “zone of proximal development”. (See previous blog by Graham Ferris)

The videos – 10 as it currently stands – are intended therefore to provide a platform, within the land law module, to ask questions of the curriculum itself. Who is land law for? Who does it alienate and exclude? In this respect, the project is inspired by the work of Cowan, Layard and Finchett-Maddock (to name but a few) in challenging themes of “alienation, exclusion, responsibility and power” within the subject of land law (Cowan, Fox O’ Mahony and Cobb, 2016).

The videos are short in length and include topics on homelessness, the housing crisis and the Grenfell Disaster.

Development and implementation

Filming for the video project began in January 2017 and ended in July 2017. To produce the videos, I worked with two students from the School of Music, Media and Film. Though time consuming, this was a most rewarding process and experience and certainly endorsed Eilam’s theory on the “dual function of visual literacy” (2012). According to Eilam, when teachers increase their visual literacy they improve as teachers because they are better able to select, construct and use appropriate instructional communications. Teachers improve as teachers (and learners) when they improve their knowledge of how to use and interpret visual representations.

Following the process of video revisions and editing (July/August 2017), the videos were then uploaded to YouTube (private setting selected) which in turn allowed me to upload and add to our VLE before the start of the 2017/18 academic term.

Next Steps

Whilst I am happy with the videos produced for this project – and the objective of providing a platform to engage, critique and question – on reflection, I am not happy with the way in which the videos have been utilised and embedded into the module. Further work is needed before the next academic year to ensure more effective engagement and use of the videos and to ensure more tangible links with learning outcomes and assessment. Over the summer period therefore, it is my intention to further develop the videos by using technologies such as H5P, Vizia or EdPuzzle to make the videos more interactive by asking questions at different points during the videos, for example. It is also hoped that we will be able to allow space this year for students to develop their own land law videos in groups.

Does it matter? Is there any benefit to utilising a more visual approach in the teaching of land law?

I absolutely agree that there is no point in innovation for the sake of ‘innovation’ or the use of technology for the sake of it, but the research clearly tells us – particularly that of Richard Mayer – that multimedia instruction does works. It works because of how the human mind works. The rationale for presenting material in both “words and pictures” or “as dynamic visual representations” is that it takes advantage of the full capacity of humans for processing information. Learners have different sensory paths. There is more than one channel for learning, observing and sensing. Multimedia instruction therefore taps into different sensory modalities for learning.

Whilst there is no denying that verbal and written representations hold, and should hold, a most privileged place in the discipline of law and by correlation in legal education, the concept of literacy in legal education could “be broadened to include more visual representations so as to foster more meaningful learning” (Eilam, 2012: xiii). More visual representations need not replace the text and the verbal but rather these forms of instruction can be used to enhance and support and to allow situations ‘speak’ for themselves and to allow for a more “multisensory approach” (Brunschwig, 2012, 2014) in the lecture theatre and the seminar room.

 

Drawing Students into Property Law

by Dr Susan Farran, Northumbria University 

At the time of writing the Commonwealth games are in progress on Australia’s Gold Coast, which reminds me that it was rumoured that ‘parkour’ or freerunning (‘an athletic activity in which the participant seeks to move quickly and fluidly through an area, often an urban locale, by surmounting obstacles such as walls and railings and leaping across open spaces, as in a stairwell or between buildings’ [the free dictionary]) might be nominated as an Olympic sport. This would be an interesting badging of acceptance of an activity that can, in some forms, involve trespass, nuisance, invasions of privacy and disregard of the most fundamental aspect of property rights: excludability.

Taking over the use and benefit of  surfaces of the built and natural environment without the entitlement of ownership  manifests itself in a number of ways, especially those surfaces – whether in public or private ownership – which can be accessed, more or less easily, by the public. If one looks around there is evidence of surface uses which challenge definitions and understandings of property law. For example, across the road from King’s Cross station (opposite the imposing red brick St Pancras Hotel) is a building with a mural over its façade. It is too extensive to be merely graffiti and was no doubt commissioned, perhaps as trompe d’oeil. But what if it was graffiti? Who would own it? This dilemma arose in the case of a  piece by the secretive but well-known graffiti artist, Banks, called ‘Mobile lovers’ which appeared on the boarded up doorway of a building leased by Bristol Council to a youth group. Graffiti is illegal, insofar as such acts can attract criminal and civil liability. But Banksy’s work fetches high prices and the discovery gave rise to a bidding war. But who should benefit: the youth club that leased the building and so were in possession; the council that owned the building; the city art gallery that took the work in for safekeeping ‘for the citizens of Bristol’; the graffiti artist who owned the intellectual property in the piece? Or was this equivalent to what Gray called ‘property in thin air’: property belonging to no one or property belonging to everyone? Or was this really a debate about property interests in art rather than property interests in part of a building (for the board was attached to the building)? If so were there different rules?

This one example could lead us to consider a range of property law questions. For instance:

  • Is this a question of public or private law and where is the division?
  • Is an art work the same type of property as a building? Is it governed by the same law?
  • In what circumstances is or might graffiti be acceptable and why?
  • Whose interests are being weighed against each other and what does this tell us about the values which inform the rules which shape property law?

Graffiti is just one example which might be used to ‘draw’ students into property law. There are of course many others such as spikes placed in doorways to prevent rough sleepers; ninja knitting of physical objects to protest development; the exclusion of the public from national heritage sites; the physical benefits and drawbacks of easements and covenants; provisions for and objections to skateboarders; restrictions and prohibitions on the use of and access to public parks; the ways in which regeneration of neglected or unsightly areas (including guerrilla gardening) might raise different property interests and challenge existing claims; the impact of certain disasters on property rights and liabilities and so on. Teaching property law does not have to start with 1066, 1925, unregistered and registered land or section 1 of any legislation!

Practice- Driven v Research-Led: Land Law and the SQE

by Michael Draper, Swansea University

Geoffrey Cheshire published the first edition of Modern Law of Real Property in 1925 before the ‘new era dawned in January 1926’. Writing in the September 1925 preface to the first edition he said:

“At the beginning of my labours I was imbued with the idea that the task of a student has been much lightened. So much has disappeared. The old rules relating to remainders, the old canons of descent, the rule in Shelley’s case, copyholds, gavelkind – they were all gone, and one’s first impression was that the amount of law which a book on real property need deal with has been diminished. This will be true in twenty or thirty years time, but unfortunately it is far from the truth at the present moment.’

The prediction in relation to volume may not have held good for long, having regard to the number of property related statutes enacted since 1960, some of which introduced a two tier system as a result of eschewing a retrospective repeal of the law. For example, the Landlord and Tenant Covenants Act 1995 and the Renting Homes Wales Act 2016 (the result of devolution in Wales). With the advent of the Solicitors Qualifying Exam (SQE) at a date not earlier than 2020 we are once again facing the dawn of a new era in the teaching of Real Property Law.

Some view this as a false and perhaps a pernicious dawn whilst others welcome the illumination provided by the Solicitors Regulation Authority (SRA) as on a bright mid summers morning ready to lead the practice minded to a new paradigm (paradise) in the teaching of Law of Real Property now frequently unimaginatively termed ’Land Law’.

In 1998 a collection of essays bound together under the title ‘Land Law Themes and Perspectives’ (edited by Susan Bright and John Dewar) announced to legal academics the rich intellectual landscape of Real Property, confidently striding through the Idea of Property in Land, Women and Trust(s): Portraying the Family in the Gallery of Law, Citizens and Squatters: Under the Surfaces of Land Law, Occupying `Cheek by JowlProperty Issues Arising From Communal Living, to the more prosaic:Land and Agricultural Production, and Real Property and its Regulation: The Community Rights Rationale for Town Planning. In a variety of themes and perspectives Real Property was confirmed as a serious academic discipline worthy of broad research within its field yielding a harvest worthy of any Chancel (in disrepair or not).

Fiona Cownie in her 2004 publication Legal Academics Culture and Identities identified four research methodologies employed by legal academics: doctrinal, socio legal, cultural legal studies and feminist legal theory; all employed to various degrees (no pun intended). These methodologies have shaped the teaching of Land Law but to this list we should now add practice driven teaching. We live in an era of supposedly research led teaching but that era is increasingly being shaped and informed by a range of internal and powerful external factors that includes REF, the NSS, TEF and the ‘employability agenda’.

The latter perhaps threatens the idea of research led academia in non-STEM subjects the most. Can we Canute like order the rising tide of the practical to retreat from the overwhelming steady shore that is academic Land Law? Professor Steve Olivier penned a ‘stimulus paper’ in July 2014, ‘The Employability Agenda and beyond: What are Universities for?’:

“What universities should do is promote the search for understanding, and help us to make sense of a complex and constantly changing world. They can do this by preserving memory and using it to sustain progress, explicitly teaching students to reduce and simplify the chaos of information, teaching us to sift what is relevant from what is superfluous. What they should do is provide us with different ways of thinking about the world from the separate and integrated perspectives of the humanities and the sciences. In doing so, they will produce self-starting and self-defining creators who help to grow the economy and improve society. The goods that universities produce in and for people are not just personal and private, but public and common goods as well. They are the common goods that enable individuals and groups to be creative and innovative, and critical to the development of these practices is an environment of unconstrained and unrestrained curiosity. Sustaining and nurturing environments where knowledge is a product of undetermined outcomes should be a greater priority for governments than restricting, even unintentionally, the autonomy of our higher education institutions.

The true value of universities lies in the creation and expansion of human capacity, thus improving the common good. This is done by promoting curiosity and by working to the premise that knowledge is provisional. What universities should continue to do is shape people who have the ability and proclivity to challenge received understanding. Graduates with the attribute of curiosity are the most valuable assets that universities can deliver to society. If we can do this then we will be contributing to employability and the economy.”

Compare these worthy aspirations to the functional Property Law and Practice syllabus for the SQE which, some argue, if adopted within an academic Land Law module reduces the role of providers of Higher Legal Education to that of a professional training body. Is this a fair observation? What do students want from their degree?

The 2015 NUS Report ‘Debt in the First Degree’ found that the most common reasons for choosing a particular subject were general interest in the subject (77%) and helping a career path (56%). Graduates of Science, Technology, Engineering and Maths (STEM) subjects were statistically more likely than in other subjects – by 42% compared to 29% – to have chosen their subject in order to get a well-paid job. Graduates of Humanities and Social Science (HSS) subjects were statistically less likely to have chosen their subject to help pursue a particular career path (49% of HSS students compared to 63% non-HSS).

It is heartening to see that securing employment does not appear first in the list which is also reassuring in the context of statistics from the Law Society.

In 2016-17, 25,155 UK students applied to study law at undergraduate level in England and Wales, out of whom 17,855 UK students were accepted on to courses. Of the UK students accepted onto courses 12,060 (67.5 per cent) are female and 5,795 (32.5 per cent) are male. In the year ending 31 July 2016, 5,728 new traineeships were registered with the SRA. In August 2017, the Solicitors Regulation Authority reported, the number of practising certificate holders in England and Wales passed 140,000 for the first time.

Whilst these statistics reflect the position as regards solicitors, smaller numbers are called to the Bar and CILEX but a not insignificant number take a paralegal position. The Institute of Paralegals website states:

Within solicitors’ firms there are already circa 60,000 paralegals (about 44% of all fee-earners!): more than assistant, associate and consultant solicitors combined. If the current trend continues (but bearing in mind that most trends hit a natural ceiling at some point) then within the next 7 – 10 years there would be more paralegals working in solicitors’ firms than there are solicitors!

As interesting as these figures are, the oft quoted statistic of relevance is that only between 40-50% of law graduates go into practice. Therefore legal education should comprise a broad exposure to law and intellectual enquiry and legal theory akin to all the best elements of a liberal arts degree with perhaps some practice based and experiential learning thrown into the mix.

However internal research demonstrates that over 90% of prospective students choose to enroll on a law degree because they have in mind that they might go on and practice law. In short they (and they their parents) want that option and at a manageable cost.

The cost of qualification is one of the key arguments raised by the SRA in support of the SQE and their revised training framework and this is certainly a factor weighing on the minds of students and their parents. The 2015 NUS Reportexamined the attitudes and behaviours of the first £9,000 fee-paying graduates. It revealed:

  • 77% of graduates were worried or very worried about their student debt
  • 43% of graduates believe their standard of living would be affected by the cost of repaying their student loan
  • Only 45% of graduates expect to fully repay their student loan debt
  • Of the 56% of graduates who believed that their degree was not worth the cost of their tuition fees, 17% believed their degree was worth considerably less than they paid
  • A third of black and minority ethnic (BME) graduates were more concerned about the interest of student loans and much more likely to want to repay them as soon as possible, believing the student loan debt to be as bad as other forms of debt such as bank loans or credit cards
  • Cost of study had some impact on the choice of institution (45%) and some impact on where graduates chose to live (60%). A considerable number of those surveyed said they would consider changing their subject (28%) or their university (23%).

All of these students were identified as final year students graduating in summer 2015. However there were only a total of 664 valid responses to the survey and therefore in the context of the final year population of the HE sector largely statistically insignificant. Although I suspect anecdotally the key findings represent student sentiment across Institutions.

In this context and coupled with the need to ensure consistency in the assessment of competencies across all routes into the profession the SRA proposals begin to make sense. However academics point to the increased competition between providers generated by the removal of any upper limit on student recruitment and the SRA’s stated aim to “support students in making informed choices through publishing data about the performance on the SQE of candidates from particular education and training providers” and legitimately argue that these factors will act as a powerful agent for change in the curriculum of a law degree.

Those Institutions already employing staff delivering the Legal Practice Course will find developing a strategy around the SQE within degree programmes through elective pathways relatively straightforward. As a practitioner teaching on the LPC and a module leader for Land Law at UG level I welcome the continued opportunity to contextualize my land law teaching. I have been doing this for over 20 years. Students at the start of a course approach the study of Land Law with some trepidation but many leave to become property based practitioners. Teaching a subject in context using practice based examples assists understanding but I also readily acknowledge that other approaches can equally fire up the enthusiasm of students of real property law. In the final analysis it is the enthusiasm and interest of the teacher working with students that matters most.

The SQE Property Law and Practice Functioning Legal Knowledge assessment will require candidates to demonstrate that they know how to:

  1. Identify the key elements of a freehold property transaction to meet the needs of a client B. Conduct an investigation of a registered or an unregistered freehold title
  2. Carry out pre-contract searches and enquiries undertaken when acquiring a freehold property
  3. Progress a freehold property transaction to exchange of contracts
  4. Carry out pre-completion steps relevant to a freehold property transaction
  5. Carry out completion and post-completion steps to meet the needs of a client
  6. Apply an understanding of the grant and the assignment of a commercial lease to meet the needs of a client
  7. Apply an understanding of the key lease covenants in a commercial lease and the law relating to a breach of these covenants

The above will likely be taught within the context of a practice based option or elective as part of a degree programme or within a postgraduate programme for non-law graduates.

Candidates will also be expected to draw on and apply knowledge from the following areas of law and practice:

  • The core principles of land law and relevant aspects of trust and contract law.
  • The core knowledge areas of freehold real estate law and practice.
  • The core knowledge areas of leasehold real estate law and practice.
  • The core principles of planning law.
  • The core principles of property taxation.

These are not new and academics may continue to teach these core principles within an academically oriented module.

The result will be that some Institutions continue to offer an entirely academic (broadly defined) experience as part of their law degree. Others will include a practice based pathway at the expense of ‘academic’ options leaving the core 7 modules including Land Law to be taught in a similar manner as existing at particular Institutions.

Ultimately market forces dictated by student choice will determine outcomes but arguably this particular lever of change was put in place before the SRA’s SQE framework. The SRA promised a bonfire of the regulations. I would suggest that the SQE cannot yet be consigned to a fiery end.

Finding Space for Socio-Legal Perspectives in the Land Law Curriculum

by Dr Emily Walsh, University of Portsmouth

Legal education faces a time of change. The inception of the solicitors qualifying exam and the death of the LPC will doubtless impact on curriculum design in law schools. The qualifying law degree does not yet face extinction as it provides a first step for aspiring barristers. The ever increasing cost of university education encourages students (and their parents) to focus their attention on the career enhancing potential of a degree, rather than the opportunity for personal and intellectual development afforded by Higher EducationStudents will increasingly look at destination data with a particular focus on starting salaries in choosing both university and course of study. Whilst there is no requirement for university law schools to prepare students for the legal profession (beyond compliance with the requirements of the qualifying law degree, where this applies), students must be recruited and employability is an important marketing toolThe effect of these changes and the resultant pressure is that the tension between vocational and liberal legal education may well increase.  

Part 1 of the SQE includes questions on Property Law and Practice, so it is likely that land law will retain its importance as one of the core elements of the law degree, regardless of the extent to which law schools adapt their curriculum to account for the changes in the solicitors’ profession. Law schools looking to improve employability and recruitment may then decide to find more time in the curriculum to allow for more emphasis on the vocational elements of the subject, perhaps including commercial landlord and tenant (a significant area of work for solicitors). As land lawyers, I’m sure, we would appreciate more time and emphasis on our specialist subject. However, as scholars we may fear the impact of an increasingly vocational emphasis on socio-legal approaches to the subject. Land law is not the most prolific subject area for socio-legal research in any event; articles on crime, dispute resolution and family law feature much more frequently in publications with a socio-legal and empirical perspectives. This does not mean that land has no potential for socio-legal study and scholarship, on the contrary land ownership and occupation is fundamental to the human experience and a rich source for research.  

The question then is whether we can find time to examine socio-legal perspectives in an area of law without firm socio-legal foundations with mounting pressures to produce graduates ready for legal practice. I would argue yes we can, and indeed should. Students studying law are studying for a degree and as such should not be denied the opportunities for critical thought and debate afforded to undergraduates studying humanities and social sciences; these skills equip students for life. Whilst law schools rightly maintain close links with the legal professions, often employing a number of former practitioners and providing clinical legal opportunities, most law graduates will not become practising lawyers. Legal education must surely reflect the diversity of the students and the variation in the career paths they will follow. Even for students seeking a career as a solicitor or a barrister the process of securing a job requires them to do more than merely grasp legal doctrine. Employers want graduates who can think, and socio-legal perspectives help to foster this critical thought. 

More specifically, if we want to increase the diversity of scholarship in land law we need to inspire students to consider land as an interesting area for further research. Students rarely clamour to write land law dissertations, instead often focusing on family law, human rights or crime. Early exposure to socio-legal approaches could help to foster enthusiasm and equip students with the basic methodological tools to embark on a piece of socio-legal research. Dare we even dream that, inspired by how they have learnt land law, students may even go on to author PhDs and join us as land law scholars? 

Teaching Property Law

by Graham Ferris, Nottingham Trent University

Property law generally, and land law in particular, poses a problem for anyone who proposes to teach the subject. The substantive law is fairly complex and not intuitive, and the reasons the law is important are various and not always obvious. The law needs to be complex as third parties are affected by property transactions, and property is necessary for human life. Most land is also in practical terms indestructible, which generates problems of coordination over time. Property law is important because it is a major feature of the rule of law, it can facilitate or obstruct economic success, and its distribution in a society is a major question of distributive justice. Property law needs to be fair as between individuals, but also efficient as a system of law. Sometimes property law throws up disputes in which two innocent parties are in dispute, and the law must decide in a just manner which innocent party suffers loss.

Given enough time we could teach all that is necessary for our students to learn the law, and understand it in a multi-faceted way. One certainty is that the law curriculum is crowded and will not permit the necessary expansion of curricula space for such an expansion of property law. Therefore, we have to decide what to teach, and what to not teach, and this is the key problem of curriculum design – what do we include and what do we omit?

My belief is that the answer to these questions should come from a two-stage process. First, we identify concepts or laws or institutions that we feel are essential to any adequate understanding of the structure of land law or property law. Our first concern must be to the subject matter, discipline, and educational aim of inculcating a competence that over time may grow to be a mastery of the subject area. Second, we need to think about the situation of the learners we are teaching. Our learners can benefit from instruction that enables them to develop their understanding or their personal growth, or both. What benefits their understanding is determined by where their “zone of proximal development” lies – they must be ready to assimilate the information, or it will fall dead on their ears, and be taken in as rote learning. What benefits their growth is determined by their own identity projects, but such issues as justice and fairness and respect are likely to resonate in a young person’s view of the world.

Thus, in selecting for teaching we seek materials that can serve (at least) two ends. The end of exposition and the end of learner self-development (intellectual or personal). Obviously, such alignment is difficult and relies upon a designer who has mastery of the subject and intimate knowledge of the learners. The only people able to undertake that task are legal academics and thus it falls to us to try and craft a property law course that serve the needs of our learners.

 

 

Eeyore’s Thoughts on the Solicitors Qualifying Examination

by Dr Lisa Whitehouse, University of Hull 

As I get older (or perhaps wiser?) the gravitational pull of progress seems to bear more heavily on me. Given I am aware of my wariness of change I try to approach it with an open mind but I have to admit that I am struggling to see the benefits of the SQE. While I understand the SRA’s motives in trying to create a more uniform measure of the skills of graduates, brandishing a very large hammer to crack this specific nut seems unnecessary and unwise. I would say that though wouldn’t I? As an academic lawyer I am naturally concerned about the SQE’s potential to sound the death knell for law as an academic subject. An overreaction you might say but the proposed response of a number of higher education institutions is to offer of an optional pathway to the SQE. This has the potential to result in a diminution of academic autonomy and the creation of a one size fits all approach to educating nascent legal thinkers. However, while some may, for this reason, view the SQE as a threat, others will see it as an opportunity. In many ways, ‘teaching to the test’, particularly someone else’s test that requires students to know the what and the how of law, is simpler than trying to persuade students of the value of understanding why the law is as it is. The SQE will, in effect, make those teaching the pathway to it equivalent to driving test instructors, teaching students not to be ‘good’ drivers but simply good enough to pass the test. Similarly, consumers (sorry, ‘students’), will choose their provider, not on the basis of the student experience or the expertise of those teaching them but, on the pass/fail rate of previous students who went on to take SQE1.

I have started to wonder whether my concerns regarding the proposed changes arise partly out of my being a land lawyer. I do not think that I am giving too much away when I say that Land Law is not a universally loved subject. The mere mention of it to anyone who has ‘had to’ study it is likely to result in a look of consternation followed by the recounting of unhappy memories of trying to understand a bewildering array of archaic terms, complex rules and statutory sections. While students have tended to view Criminal Law as the equivalent of a James Dean character, all edgy and sexy, and Jurisprudence as Sartre, smoking in horn-rimmed glasses, Land Law is perceived as John Major, quite clever but achingly dull. Given its reputation, I have fought over the years to ensure that Land Law is taught in a way that makes it relevant to the lives of those studying it, to invest it with colourful examples and to inform it by reference to my research. Despite my concerns regarding the potential for the SQE pathway to focus on the doctrinal content of law and its practice, I am not averse to inviting legal practitioners to speak to my students. The aim however is not to reveal to the intricacies of the White Book but rather, to hear stories of hawks and doves within the judiciary, eccentric clients and, how the law in books does not always reflect the practice. I take delight in the fact that a number of students have told me recently that, despite having been told how difficult Land Law is, it has turned out to be their favourite subject. While its only competition may be EU Law and Public Law that’s still an achievement! I wonder whether a move to teaching the pathway to the SQE will allow me to continue teaching my students in this way.

I wonder also (sorry, just putting my rose tinted spectacles on here) whether the SQE pathway has the capacity to engender in students the same level of passion for Land Law that was ignited in me during my university days (if I had been able to carry Elements of Land Law around with me as a badge of honour then I would have done, but it was too heavy). Will lecturers have room, as my lecturers did, to cast enchantments littered with Latin and equitable maxims that imply that everything will be fine provided you clean your hands before doing what ought to be done? Or will it simply be a matter of students learning by rote the statutory provisions and Civil Procedure Rules prescribed by the SRA?

While I may be holding on to an age that has passed, I have to continue to believe that higher education is not about producing clones but rather facilitating students to be inquisitive, critical and adaptable learners. If, despite the ever changing nature of legal education, I can continue to do that then I will be content that I have done justice, and not by halves.

 

Assessing Land Law Using Online Testing

by Sandra Clarke, University of Greenwich

With the advent of the SQE, which will have a large component of online assessment, it seems a sensible time to examine the benefits and drawbacks of this method.

I teach a 30 credit level 5 land law course to around 90 students per year. Last year, I changed from a seen written exam in January to a seen online assessment. Both assessments test all the material taught in the first term (introductory material on the nature of land, tenure and estates, the freehold estate, leaseholds, co-ownership, trusts of land). Aspects of co-ownership and TOLATA in particular, along with writing skills, are assessed in more depth by a research problem question in term two.

The assignment consists of 20 questions, a mix of MCQs, extended matching, and ordering. In this post, I will concentrate on MCQs. Questions are created using the Moodle quiz tool. They are based around a register of title, which is available to students before the Christmas break, as are the questions asked (but not the options). Students can ask questions about the assessment on a dedicated Moodle forum.

Students take the assessment unsupervised during an eight hour window. Once they begin they are timed, and cannot restart. Last year I allowed one hour for the students to complete the MCQs, but this was too long. For comparison, the QLTS requires candidates to answer 90 questions in 165 minutes (about 1.6 minutes per question). This year I will allow 40 minutes. The Moodle quiz tool allows extra time to be added for students with reasonable adjustments for specific learning needs.

MCQs consist of three main parts, the stem, the lead in, and the options, which consist of the key (correct answer) and a number of distractors.  For example:

Stem The Boat House has been sold to Lucy and Francine, who hold the property as joint tenants in law and equity. In fact, Lucy contributed 75% of the purchase price. Lucy has served a written notice on Francine stating that she now wishes to sever the joint tenancy.
Lead In What will be the effect of this notice?
Options A.      Lucy and Francine will still be joint tenants at law, holding the land on trust for themselves in equity. Lucy and Francine will now be tenants in common in equity, holding equal shares (50% each).

B.      Lucy and Francine will still be joint tenants at law, holding the land on trust for themselves in equity. Lucy and Francine will now be tenants in common in equity, holding shares in proportion to their contributions to the purchase price (75% to Lucy and 25% to Francine).

C.      Lucy and Francine will be tenants in common in law and in equity, holding the property in the shares in which they contributed to the property (75% to Lucy and 25% to Francine).

D.      The written notice will have no effect, as joint tenancies cannot be severed by written notice.

Critiquing this question (which is one I used in the test last year), the first point is that the stem is unclear, as it is not specified whether the starting presumption is required, or the decision that may be reached if a common intention constructive trust is raised. It would have been better to have stated clearly that it was an express declaration of trust creating a joint tenancy in law and equity, or to have said ‘what is the starting presumption of the court as to the effect of this notice?’  In practice, since this was a seen exam, the students could ask if they were unsure. The stem is meaningful, and does relate to a particular rule of law which the student should know.

The lead–in should ideally be able to be answered by the student before any of the options are seen. This would be the case here if the stem were clear. A student who knows the legal rule should be able to identify that it is relevant here. Lead-ins to avoid include ‘which of the following is correct?’, or, even worse, ‘which of the following is incorrect’?

The options should contain a clear key and a number of distractors which should be plausible and not too different in length from the key. In this respect, distractor D is not ideal. It could perhaps be rephrased as ‘Lucy and Francine will still be joint tenants at law, holding the land on trust for themselves in equity. They will continue to be joint tenants in equity as joint tenancies cannot be severed by written notice.’

It is possible to give partial marks for partially correct answers, but I will not do so this year as I found it inflated the grades achieved, and will not apply in the SQE. Students have to find the best answer, even if other answers contain some correct information.

My initial findings after one year of online testing are that it is possible to test understanding and application in online quizzes in land law, but setting the questions is a difficult and time-consuming task.

Helpful articles include:

Case, S. and Donahue, E. (2008) Developing High-Quality Multiple Choice Questions for Assessment in Legal Education 58 J. Legal Educ. 372 2008

Deane, F. and Bozin, D. (2017) Using Guiding Principles to Construct Effective Multiple Choice Exams to Assess Legal Reasoning Legal Education Review: Vol. 26: Issue 1 , Article 1. Available at: http://epublications.bond.edu.au/ler/vol26/iss1/1

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