Property I Physical Limits Of Land Notes

PROPERTY I

1. Physical Limits of Land

The maxim/Brocard: Basically that property rights extend all the way above and all the way below that property.

1. The application of the brocard in relation to ownership

2 points are very clear:

1. an owner’s rights are not limited to the surface of the land itself:

Above the land:

See e.g. Kelsen v Imperial Tobacco Co [1957] 2 QB 334: an injunction was granted forcing the tobacco company to take down a sign that encroached on the air space above Kelsen’s shop.

Below the land:

See e.g. Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35, [2011] 1 AC 380: damages were awarded to Bocardo as Star Energy had drilled diagonally in order to extract oil from an area ranging from roughly 800 feet to 2,800 feet (250 m to 850m) below the surface of Bocardo’s land.

2. an owner does not have complete and unlimited control over the area both above and below the surface of the land:

Above the land:

See e.g. Bernstein v Skyviews [1978] QB 479: no damages were awarded to Lord Bernstein when Skyviews flew an aircraft above his land without his permission (there was a “fierce dispute as to the position and height of the aircraft”: see Griffiths J at 484).

Civil Aviation Act 1949, s 40(1): stipulates that flying an aircraft over someone’s property, at a reasonable height is not trespassing and does not count as a nuisance.

Below the land:

Note Lord Hope in Bocardo at [15]: “The depths to which the wells in question were drilled in this case do not get anywhere near to approaching the point of absurdity. The fact that there were substances at that depth which can be reached and got by human activity is sufficient to raise the question as to who, if anybody, is the owner of the strata where they are to be found.”

2 points are much less clear:

1. what are the limits to an owner’s rights above the surface?

Griffiths J= Need to make an exception for aircrafts therefore owners’ rights should only extend to ‘’such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it.’’ As = public interest in allowing aircrafts to pass.

Anchor Brewhouse Developments Ltd v Berkley House [1987] 2 EGLR 173: It was held that a trespass was committed when the defendant’s crane swung over the claimant’s property. See Scott J at 175-6:

‘’If an adjoining owner places a structure on his land that overhangs the neighbour’s land, he thereby takes into his possession air space to which his neighbour is entitled. That, in my judgment, is trespass…

The difficulties posed by overflying aircraft or balloons, bullets or missiles seem to me to be wholly separate from the problem which arises where there is invasion of air space by a structure placed or standing upon the land of a neighbour.’’= distinguishes from skyview.

PUBLIC POLICY: owner’s control over airspace is limited because it would be unreasonable and impractical considering 21^st century air traffic. A balance must be struck between the claims of the party with a pre-existing property right and the freedom of others.

2. do the same limits apply below the surface as above the surface?

Lord Hope in Star EnergyV.Bocardo- Rejects that Lord Griffith’s skyview test should apply below the land

• oil field under a

property – S had drilled under B’s land – issue was the extent to which the property right extended below the land – held that the limit to a right below land was the point at which the concept of ownership became absurd(point of absurdity) – owner of surface owns substrate beneath, unless transferred to another by statute/conveyance – no question of subsurface becoming public highway, like airspace.

GENERAL PRINCIPLE: ownership is not limited to the surface of the land itself, extends below the land until the concept becomes absurd.

• couple discovered cave under their

land, charged people to visit – third of cave was under neighbour’s land – held that this was a trespass and they to pay neighbour a share of the profits NOTE: American case, persuasive only.

2. Does the brocard apply in the same way in relation to a building which is the subject-matter of a lease?

E.g. Gorst v Knight [2018] EWHC 613 (Ch): a house was divided into two maisonettes – Flat 1 included the ground floor and cellar. Flat two was on the first and second floor. The tenants of Flat 1 wanted to extend the cellar but to do this they needed to dig down another 4 feet into the subsoil under the house. The landlord, who owned the whole building, opposed the tenants’ plan to extend the cellar. The tenants argued that the brocard applied to leases in the same way it applies to ownership, so that the lease of the flat should be presumed to include the subsoil under the cellar. HHJ Matthews rejected this argument and held that the tenants could not extend the cellar without the landlord’s permission. He had this to say about the application of the brocard to leases- Maxim does not mean that rights extend automatically upwards or downwards when you get a lease, only applies to freehold ownership so to determine whether airspace and sub soil is included in the lease, have to look at specific terms in the lease you can’t just assume it. In this case lease made specific reference to ownership being of the ‘building’ and not the subsoil. += granted in 1992 when the basement thing she wanted to do was not common at all.

2. What Objects does the Land Include?

The basic distinction is between:

1. independent objects (which may or may not be owned by an owner of the land); -chattels

2. objects that become part and parcel of the land (and are therefore owned by owner of the land) -fixtures.

When does an object become part and parcel of the land?

The annexation test.

The answer to this question depends on two factors which are objectively determined:

• the degree of annexation to the land

• the (objectively determined) purpose of annexation

An example where the object does become part and parcel...

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