Sayles: Land Law Concentrate 4e
Chapter 1: Outline answers to essay questions
'Cuius est solum eius est usque ad coelum et ad inferos': he who owns land owns everything up to the sky and down to the centre of the earth. To what extent is this Latin phrase misleading today?
It may be advisable to first consider what is meant by 'ownership of land'.
- Identify that technically all land is owned by the Crown.
- A persons 'ownership of land' is rather a proprietary right to possess and enjoy the land for a period of time. This is known as an 'estate' and the freehold estate bestows upon a person rights over the land that are, for all practical purposes, tantamount to absolute ownership.
Assess the way ownership of land no longer means having rights over everything up to the sky and down to the earth. This may include consideration of:
- rights extending only as far as the lower airspace and not the upper airspace. Explain how lower and upper airspace is determined. Key authorities include Anchor Brewhouse Developments v Berkley House (Docklands Developments) Ltd (1987); Bernstein of Leigh (Baron) v Skyviews & General Ltd (1978); Civil Aviation Act 1982;
- statute qualification over rights to certain things found in the ground, for example Coal Industry Act 1994;
- ownership of treasure found on your land belonging to the Crown: Treasure Act 1996/Treasure (Designation) Order 2002;
- ownership of other items found on your land. Key cases include Moffat v Kazana (1960); Waverley BC v Fletcher (1996); Parker v British Airways Board (1982);
- ownership of plants and animals found on the land;
- rights where water flows over the land;
- what actually amounts to land: the fixtures and chattels debate. Key cases include Holland v Hodgson (1872); Botham v TSB Bank plc (1997).
Draw conclusions from the analysis above.
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 the land Law of Property Act 1925 s.62
A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
'He who owns the land owns everything up to the sky and down to the depths' Unrealistic in modern times – pipes underground, aircraft above etc. Bernstein v Skyviews & General Ltd 1978 QB: Establishes that a landowner doesn't have unqualified rights over the airspace of his land.
Fixtures and Fittings Law of Property Act 1926 s.62 'Whatever is fixed to the land becomes part of the land' Holland v Hodgson 1872 LR 7CP 328: Looms were fixtures as they were attached to the floor by nails, not just their own weight. If an article is annexed to the land by something more than its own weight, it's a fixture, therefore part of the land. Elitestone v Morris 1997: Bungalow couldn't be removed without its destruction. An objective test to determine whether the object was intended for the use or enjoyment of the land, or for the more convenient use of the object itself.
General principle: whether an object is part of the land is determined by... a) The physical degree of annexation Chelsea Yacht & Boat Co v Pope 2000 1WLR 1941: Boat on a river was a chattel not a fixture b) The purpose of the annexation: for better enjoyment of the land or for the better enjoyment of the chattel? Leigh v Taylor 1902 AC 157: These tapestries were works of art, but could be removed without causing structural damage. Therefore they were chattels not fixtures. Re Whaley 1908 1Ch 615: These tapestries were hung as to create the effect of an Elizabethan dwelling house, therefore they were fixtures.
Relevance? Buyer: Taylor v Hamer 2002 EWCA Civ 1130: The Court decided that the flagstones were fixtures, and suggested that a seller is not allowed to remove fixtures without informing the buyer if there is a possibility that the buyer expects the fixtures to be included in the sale. Mortgage lender:
Botham v TSB 1996 EGCS 149: The bank applied to the High Court to decide if certain everyday articles in the borrower's flat were 'fixtures' and therefore were subject to the bank's mortgage, so it could sell them as mortgagee. Taxation:
Melluish v BMI 1996 AC 454 Landlord and tenant: A tenant has the right to remove 'tenants fixtures and fittings' at the end of the tenancy: Young v Dalgety 1987 1 EGLR 116: A better definition of a tenant's fixture is any item which is properly legally identifiable as a fixture and which was installed and continues to be removable by the tenant, is a tenant's fixture. Spyer v Phillipson 1929 2 Ch 183:
So long as the chattel could be removed without doing irreparable damage to the demised premises, neither the method of attachment nor the degree of annexation, nor the quantum of damage that would be done either to the chattel itself or to the demised premises by the removal, had any bearing on the right of the tenant to remove it. Wessex Reserve Forces and Cadets Association v White 2005 EWHC 983: landlord’s intention here to ‘demolish’ the premises only led to its aspirations of regaining possession being ‘flattened’ when the court held that (objectively) the landlord’s (subjective) intention could not be implemented and that, in any event, the landlord would not require possession of the premises to carry out the proposed works.
Ownership of things found on the land. Parker v British Airways Board 1982 QB 1004: court decided that the finder of a gold bracelet in a public area of British Airways was entitled to possess it against the whole world save the true owner. An occupier of a building has rights superior to those of a finder over chattels on or in, but not attached to, that building if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be on or in it. Bridges v Hawkesworth 1851: The finder of a lost article is entitled to it as against all but the true owner.
Waverley BC v Fletcher 1996 QB 334: owner or lawful possessor of land owned all that was in or attached to it. Local authority which owned a public open space had a right SUPERIOR to Finder to things found in the ground of that open space and was entitled to possess them against all but the rightful owner.
Buried Treasure Treasure Act 1996 s.1(1) Defines what treasure is s.4(1) When treasure is found, it vests, subject to prior interest and rights...in the Crown... s.8(1) A person who finds an object which he believes or has reasonable grounds for believing is treasure must notify the coroner for the district in which the object was found (within 14 days) s.8(3) Any person who fails to comply with subsection (1) is guilty of an offence... s.10 Payment of rewards