Wednesday, 4 October 2017

Introduction to Land Law

Land law

TO READ: P Birks, “Before We Begin – Five Keys to Land Law” in S Bright & J
Dewar (eds), Land Law: Themes and Perspectives (1998, OUP) 457

What is the difference between proprietary and personal rights?

What counts as land? Why is this important?

What is the difference between property rights and personal rights?

What are the tests by which to determine whether a particular item is a chattel or
a fixture.

What is the extent of a landowner's rights in the airspace above his land and in
the earth beneath it?

WHAT IS LAND?

- DEFINITION: S.205 (1)(ix) Law of Property Act 1925 states that land includes
land of any tenure, and mines and minerals, whether or not held apart from the
surface, buildings or parts of buildings (whether the division is horizontal, vertical
or made in any other way) and other corporeal hereditaments; also a manor, an
advowson, and a rent and other incorporeal hereditaments, and an easement,
right, privilege, or benefit in, over, or derived from land;

- Ignore manor and advowson.

- Corporeal hereditament simply means the physical land itself. Hereditament is a

term for a property right that is capable of being inherited.

- Incorporeal hereditament is a right against land owned by another party.

- Owner of the land also owns the subsoil of the land, as well as any minerals (this
is in principle only) due to the maxim Cuius est solum, eius est usque ad
coelum et ad inferos which means “The land owner owns everything up to
the heavens and everything up to the hell below”

MINERALS:
- All minerals except oil, gas, coal, gold and silver belong to the land owner. These
exceptions are owned by the state.

- The land owner may sell these minerals to another or lease them separately. The
land owner may also reserve minerals on sale generally or by limiting the sale to a
certain depth.

- Where mining rights belong to another (individual, company or state), there is a

risk of subsidence of the subsoil above and any structure erected on it. (Practical
to look at in the sale/purchase of land)

SPACE BELOW LAND:

- Grigsby v Melville: Conveyance of land ordinarily carries with it all that is beneath
the surface. Hence, a person owns all the space beneath his land.

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- Bocardo SA v Star Energy UK Ltd (2010): land owner is the owner of the strata
beneath it, including any minerals found there unless there has been an alienation
of them by conveyance, common law or statute to someone else. HOWEVER
- s 43 Infrastructure Act 2015: states that there is no trespass at depths below
300 metres, hence consent from a freehold owner is not necessary for deep level
drilling.

SPACE ABOVE LAND:

- Bernstein v Skyviews and General Ltd, The court limited the landowners right
to the airspace to such a height as is necessary for the ordinary use of the land
and the structures on it. This is known as the lower airspace

- If a structure overhangs your property in the lower airspace, there will be a

trespass despite no damage coming to your property.

- Kelsen v Imperial Tobacco - injunction was granted to remove an advertising

board erected by the defendant because it projected into the claimants land by a
few inches
- Woollerton and Wilson v Richard Contain - injunction granted to restrain
defendants crane from overhanging Woollertons premises 50 feet above roof
level. However this injunction was postponed by a year.

- London and Manchester Assurance v O& H Constrain Ltd: injunction granted

to restrain over swinging crane and other encroachments on claimants property
as the court held that “a party is not entitled to swing his crane over his
neighbours property without his consent.”

- Lemon v Webb: One is entitled to chop off over hanging branches of his

neighbour without prior notice. However, these branches must be handed
back to the neighbour.

- Ellis v Loftus Iron Co: Held that a horse putting his head across a dividing fence
constituted trespass over the neighbours property.

- NOTE: In the event of a trespass the court may grant an injunction or simply
award damages. Injunction is a remedy that lies at the discretion of the courts.

- Bernstein v Skyways and General Ltd: Defendant flew many hundreds of feet
above the claimants country house (land) in order to take an aerial photograph
and did not interfere with any use that the claimant may have for the land. As
such had not committed trespass.

- s 76(1) of The Civil Aviation Act 1982 grants immunity to any aircraft or flight
from nuisance or trespass which is at a height above the ground which is
reasonable after taking into account the wind, weather and all the circumstances
of the case. This applies only to innocent passages. Aerobatic Display etc do not
apply. This is also subject to any air traffic control regulations. No aircraft may fly
closer that 500 feet except on landing and taking off as per the Rules of the Air
Regulations 2007 (SI 2007/734)

WATER:
LAKES:
- Subsoil beneath a lake belongs to the owner of the land on which the lake stands.

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RIVERS:
- Bed of a river belongs to the owner of the land through which the river passes.

- If a river bed forms a boundary between two plots of land then there is a
presumption that each owner owns the bed of the river up to the middle line.

- Owner of the land has no absolute right over the water flowing through the land.
However the owner may take water for ordinary purposes such as irrigation,
working a mill or industrial use at common law, provided that the purpose is
connected with the land and the water is returned to the stream in substantially
the same condition and quantity.

- Water Resources Act 1991 governs the rights to abstract water. A licence is
required for the abstraction of water unless it is a limited amount for domestic
purposes or for agricultural purposes other than spray irrigation. This Act applies
to water percolating through rivers as well as undefined channels. A right to fish
applies to the owner exclusively in any non tidal river running through his land. If
the river forms a boundary, this right extends up to the middle line only.

BOUNDARIES:
- River, Road or Highway: If the land is bounded by a river, road or highway, the
presumption is that the landowner owns the property up to the middle line.

- Roads and Local Authority: If a road is adopted by the local authority, it has
taken up the responsibility of its upkeep. The local authority owns only the
surface of the road (land). The subsoil beneath the road belongs to the land
owner.

- Change of Course on A Riverbed: If a riverbed changes its course, the extent of

the land owned change accordingly if the changes are gradual and imperceptible.

- Sea: If the land is bound by the sea, the boundary is the high water mark. The
foreshore (land between the high water mark and low water mark) belongs to the
crown. Any erosion or alleviation will lead to a loss or gain of land for the land
owner.

WILD ANIMALS:
- Wild animals cannot be subject to true ownership. However, the land owner, has
the right to hunt and kill any wild animals on his land subject to legislation. When
a wild animal is killed or captured, it becomes the property of the land owner
irrespective of who has killed/captured it.

- If a wild animal flees to an adjacent land, the neighbouring land owner has the
right to kill/capture it.

THINGS FOUND ON LAND:

- The true owner is the owner of things found on land.

- If the true owner cannot be found, and the item is a treasure, it is owned by the
crown.

FIXTURES:
- Quidquid plantur solo, solo credit is a maxim which means ‘whatever is attached
to the land becomes part of it.’

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- A fixture is a chattel that becomes part of the land when it is attached physically
to the land. Hence, it will pass with the land upon transfer of ownership unless it
has been lawfully severed beforehand.

- It is important to distinguish between fixtures and chattels because:

1. ownership of fixtures can only be transferred by the conveyance of land, whilst

ownership of a chattel can pass through physical delivery.

2. S. 62 LPA 1925 states that a conveyance automatically includes all fixtures in

the property unless items are excluded from the sale under s.62(4) LPA 1925
hence an owner may not remove a fixture after they have contracted to sell the
property to another.

3. Fixtures pass as realty whilst chattels pass as personalty to beneficiaries and

representatives.

4. Fixtures form part of the security if it is mortgaged and will form part of the sale
by the mortgagee following repossession.

- There are 2 tests to determine whether an item is a fixture or a chattel:

5. The degree of Annexation AND

6. The purpose of Annexation

1. Degree of Annexation:
- The more firmly the object is fixed to the land, the more likely it is to be
classified as a fixture, even if it is fairly easy to remove. However, If the object
rests on the land by its own weight, it is generally classified as a chattel.

- Holland v Hodgson: spinning looms bolted to the floor of a mill were

considered to be fixtures.

- An article which is affixed to the land even slightly is to be considered as

part of the land, unless the circumstances are such as to show that it was
intended to all along continue a chattel, the onus lying on those who
contend that it is a chattel.

- Smith v City Petroleum: petrol pumps on a station forecourt were considered

to be fixtures.

- Melluish v BMI: central heating, elevators, video/alarm system and swimming

pool filtration system were all fixtures.

- Aircool Installations v British Telecom: air conditioning equipment fixed to

the walls of a building were fixtures

- Hulme v Brigham: printing machinery resting on its own weight was chattel

- Culling v Tufnal: a Dutch barn resting on its own weight was chattel

- H E Dibble Ltd v Moore: movable greenhouses were chattel

- The test for degree of annexation may be rebutted using the purpose for
annexation test.

2. Purpose of Annexation:
- This is an objective test which seeks to determine whether the object was
annexed for the more convenient use or enjoyment of the chattel as a chattel
or for the more convenient use for the land or building.

- Botham v TSB Bank: This is an objective test. If the item is placed temporarily
for the more convenient use of it as a chattel, it will remain a chattel

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notwithstanding the degree of annexation, as long as the degree of annexation
is no more than necessary for the enjoyment of the chattel.

- If an item cannot be removed without damage to the fabric of the building, it

is more likely to be a fixture.

- Hamp v Bygrave: Purpose test prevails over degree of annexation test where
there is a discrepancy between them.

- Holland v Hodgson: After the degree of annexation test is applied, the burden
of proof falls on which ever party is seeking to prove against the degree of
annexation test by application of the purpose of annexation test. It is when the
burden is overcome that the purpose of annexation test prevails.

- If chattels are incorporated into the architectural design of a building, it may

constitute a fixture even if it is not firmly affixed

- D’eyncourt v Gregory: Stone garden seat and several statutes which stood
on their own weight were held to be fixtures as they formed the architectural
design of a house and its lands.

- Kennedy v SOS for Wales: 3 bronze chandeliers and a carillon turret clock
in a stately home were held to be fixtures as they were part of the overall
design.

- La Salle Recreations v Canadian Complex Investments: wall-to-wall

carpet in a hotel was considered to be part of the overall design motif.

- Re Waley: A picture and tapestry were part of a house built as a complete

specimen of an Elizabethan house were fixtures as they were part of the
overall design. Compare Leigh v Taylor
- Hamp v Bygrave: stone and lead garden ornaments were held to be fixtures
as they were advertised as part and parcel of the land.

- A chattel may remain a chattel even though it is firmly fixed to the land if the
purpose of annexation is for the better enjoyment of the chattel as a chattel.

- Leigh v Taylor: A tapestry was taxed firmly to the wall for the purpose of
displaying it in order to enjoy it, and so was held to be a chattel. Compare
Re Waley.
- Credit Valley Cable v Peel Condominium: Canadian case: television cable
and antennae were chattel as they were installed for the enjoyment of
television and not for the permanent improvement of land.

- Berkley v Poulett: The disputed items consisted of several valuable

paintings which were set into oak panelling, a large marble statue of a greek
athlete which weighed half a tonne and rested on its own weight on a stone
plinth on the West lawn and a large sundial also resting on its own weight
outside the South wing. Scarman LJ indicated that the object of annexation
has greater significance than the degree of annexation. The paintings were
affixed for the better enjoyment of them as paintings and the statue and
sundials were also placed for the better enjoyment as chattels.

- Botham v TSB Bank: Mr and Mrs Botham’s house was mortgaged and
repossessed. Before repossession took place, they removed various items.
The court had to consider whether the items for fixtures or chattels. Per Roch
LJ: “If the item viewed objectively, is intended to be permanent and to afford a

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lasting improvement to the building, the thing will have become a fixture. If the
attachment is temporary and is no more than necessary for the item to be used
and enjoyed, then it will remain a chattel” Hence, it was held that the bath,
lavatory and bathroom fittings were fixtures in addition to the kitchen sink and
units. The curtains, carpets, light fittings, kitchen appliances such as washing
machines, dishwashers, cookers were chattels.

- Elitestone v Morris:  Elitestone argued that the bungalow was separate from
the land since it rested on its own weight on concrete pillars and was not
physically attached to the land. It was held that a house which is constructed
in such a way so as to be removable, whether as a unit, or in sections, may
well remain a chattel, even though it is connected temporarily to mains
services such as water and electricity whilst a house which is constructed in
such a way that it cannot be removed at all, save by destruction, cannot have
been intended to remain as a chattel. It must have been intended to form part
of the realty.

TYPES OF PROPERTY:
1. Real Property: All property rights in relation to land are real property except for
leases. This includes fee simple estates, mortgages, easements, profits etc.

2. Personal property: includes rights in all types of property except land. This
includes chattel (tangible property / choses in possession) and intangible
property (choses in action). Personal property also includes leases.

- The distinction between real and personal property is significant nowadays only
when the phrases are used in a legal document such as a will or trust.

RIGHTS IN RELATION TO LAND:

- Land has special types of rights that are not held in other types of property. This is
due to a variety of reasons including the immovable nature of land, the history
associated with land in regard to wealth, the inability to make more etc.

Personal Rights:
- Rights against the person who granted you the right, not against the property its
self. This right is only enforceable in personam. One can only recover damages,
not the property itself.

- This right is not enforceable against a 3rd party. Therefore, if the property has
passed on (been sold etc) to Party Y from Party X, you cannot sue Party Y, if party
Y was not part of original bargain.

Proprietary rights:

- Are property rights in property that come into being when you own that particular
property

- Enforceable right in rem. This means that an owner can take action to recover
that particular property if he is deprived of the property.

- This right is enforceable against 3rd parties.

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- BUT in LAND, non-owners can have proprietary rights in it.

- Proprietary rights in land allow you to recover possession of the land or use in it
from a new owner, even if they didn’t give you the right in it.

Types of Proprietary Rights in Land:

1. Rights of Owner: This is held by the Crown.

2. Estate in Land: This is the Right to Possess Land. There are 2 types of estates
in land; Feesimple in absolute possession (freehold) and term of years
absolute (leasehold). (Everyday ownership, e.g.: owning house is just the right
to possess the house).

3. Interests in Land: (3rd party interests in land) These are rights that are limited in
use. It includes easements, restrictive covenants, mortgages, beneficial interests
in trusts (resulting trusts arise where a party contributes to the purchase of a
property at the time the property was acquired whilst constructive trusts arise
when a party substantially contributes to the repayment of mortgage or pays for
or personally undertakes) as well as estate contracts. Interests in land can be
legal or equitable.

In order for a right to be a proprietary right in land; the right must:

1. Be on the list of rights which can exist as estates or interests in land found in S.1
Law of Property Act 1925.
2. Comply strictly with any definition in statute or common law.

3. Comply strictly with the formalities set down for acquisition. This means one
must follow a set procedure in order to create a proprietary right.

4. Be properly protected in order to be enforceable against a 3rd party.