What Is Land Notes

Land Law: What is land?

What counts as land? Why do we need to know?

• Non-owners can only have a proprietary right (and enforce it against a 3^rd party) if the subject matter is land.

• You must use a ‘Deed’ to transfer land.

• What is included when you buy a house?

  • S.62 Law of Property Act 1925. Says that a conveyance of land includes fixtures.

• What can a lender take in mortgage possession proceedings? If a lender, under a mortgage, repossess your house, they can take fixtures, but not vassals.

• Who inherits what? If you leave land in your will, need to know what counts as land.

What is land?

• Cuius Est Solum Eius Est Esque Ad Coelum Et Ad Inferos: he who owns the land owns everything up to the heavens above and depths below.

• LPA 1925, s205(1)(ix), defines land. Includes:

  • corporeal hereditaments (physical land, buildings, including fixtures)

  • + incorporeal hereditaments/intangible rights (eg easement, profit a prendre).

Restrictions on what is land

• Certain minerals/mines: certain minerals belong to State.

• Airspace:

  • Upper airspace:

  • Limited to the height necessary for ordinary use & enjoyment of land (Bernstein v Skyviews). Above that height, left for public. Facts: D flew over C’s country house to take aerial photograph; no trespass.

  • Lower airspace

  • Portion of airspace which is reasonably necessary for landowner’s use & enjoyment (Bernstein).

  • Kelsen v Imperial Tabacco: advertising sign projected into airspace. Injunction.

  • Woollerton & Wilson v Costain: D’s cran overhang, 50 feet above roof level; injunction.

  • Lemmon v Webb: entitled to lop off overhanging branches (must offer them back to neighbour)

  • Ellis v Loftus Iron: horse putting head over fence.

  • Laiqat v Majid: extractor fan, height of 4.5m; protruded 750 millimetres.

• Ground below:

  • Grigsby v Melville: land ordinarily includes all beneath the surface, re a cellar, was owned by C.

• Water

  • Lakes: sub-soil under water belongs to owner.

  • Rivers: bed of river belongs to owner of land through which river passes.

  • Where it forms a boundary between two plots: presumption of each owner owner of bed up to mid-point of water.

  • Owner no absolute right to water flowing through the land. Water Resources Act 1991.

• Boundaries:

  • If property bounded by a river/road/highway: presumption, adjacent landowner owns property up to middle line.

• Support: is a right of support to land in natural state; but not to buildings erected on land if additional weight of building contributes to subsidence.

• Wild animals: not subject of absolute ownership; landowner right to hunt & catch wild animals on land; and on death/capture, become personal property. If animal flees to adjacent land, adjacent landowner can take up the chase.

• Natural produce:

  • Fructus naturales: natural products of soil (eg grass, timber, fruit)—treated as land.

  • Fructus industrials: annual crops requiring expenditure of human effort & labour on regular basis, not part of land (eg cereal, potato).

  • Saunders v Pilcher: clear contrast between crops which require annual labour; and those, which are produced by trees year after year (the productive act is the initial planting of the trees). If ‘industriales’, produc requiring labour = not part of land. Held: cherries growing on trees = natureles, part of land.

Things found on the land

• First, check if original owner can be found, right to owner of land on which found must take reasonable steps to find owner –> Moffat v Kazana, true owner, if can be found, always has best title.

• IT NOT:

• If Treasure trove, belongs to crown:

  • Treasure governed by Treasure Act 1996: defined in s1 goes to the Crown

• If not Treasure:

• Objects within/attached/embedded in land:

  • Belongs to landowner--Waverley BC v Fletcher, even if not the finder and unaware of object’s existence.

  • [[note, true owner still has ultimate claim if can be found, Moffatt v Kazana]].

• Objects on the land, unattached:

  • Finder can take ownership UNLESS:

  • landowner has declared intention to exercise control of the land and things found on it (Parker v British Airways Board).

  • Can be express or implied; will depend on nature of place, public or private. If private place with restricted access, clear implied intention; if public, need express intention, eg a park).

  • Facts: how public/private land is; whether enclosed; whether a sign; how large and well kept the grounds are etc.

  • Bridges v Hawkesworth: money found by customer on shop floor; belonged to customer; shop floor a public place; no intention to exercise control manifested.

  • Hannah v Peel: finder of brooch; finder entitled.

Fixtures/Chattels

• s205 LPA 1925 defines land as including ‘other corporeal hereditaments’, including fixtures.

• Fixture = part of land. Chattel=not part of land, seller can take away.

• 2 tests, Holland v Hodgson:

  • Blackburn J: degree of annexation tests raises a presumption; then burden of proving otherwise, based on purpose of annexation, passes to the party seeking to establish the opposite.

  • (1) Degree of annexation

  • Fixtures, eg:

  • Spinning looms bolted to mill floor (Holland v Hodgson)

  • Petrol pumps on station forecourt (Smith v City Petroleum)

  • Central heating, elevators, video/alarm system, swimming pool filtration (Melluish v BMI).

  • Air condition unit fixed into building walls (...

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