Month: May 2018

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 Jowl‘ Property 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.

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 Education. Students 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 tool. The 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? 

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.