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Introduction to Land, History and Foundation of English Land Law - Coggle…
Introduction to Land, History and Foundation of English Land Law
Definitions
Definition of Land
Per S205(I)(ix) LPA 1925:
- "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 hereditament; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, benefit in, over or derived from land..."
- Definition of land that is problematic and complex
- Definition includes any different aspects and rights and creates parameters of the extent of land
Hereditaments
Corporeal Hereditaments:
- Rights which have some real / tangible quality
- Includes anything growing on land like shrubs, trees or anything found under the ground like minerals
Incorporeal Hereditaments:
- Intangible rights in land
- Non-physical but effect can be felt by owner of the plot of land / adjoining property
- Includes right to use the neighbour's garden as a shortcut, mortgages and leases
Physical Extent of Land
- "Cuius set solum, eius est usque ad coelum et ad inferos" - UP, DOWN & LONG
"Cuius est solum eius est usque ad coelum et ad inferos"
- "He who owns the land owns everything reaching up to the very heavens and down to the depths of the earth"
- How far the grant of freehold of land extents upwards and downwards from the surface, must consider what it is that the freeholder is competent to dispose the land
- Must consider in terms of: grant (only the actual words used), with relevant context of its use, relating to the state + extent of freehold available
- Airspace over property:
- Land must include part of the airspace above the ground, if not usage above property = trespass
- But cannot extend to the heavens above
- Airspace split into 2 levels:
Bocardo SA V Star Energy UK Onshore Ltd:
- The Latin term is still very relevant and generally accepted, even though it doesn't apply to the use of airspace above a height that could interfere with the ordinary user of land
Upper Stratum
Re The Queen in Right of Manitoba and Air Canada:
- Claim for tax over sale of goods in airplane
- Held: No such claim can be allowed
Berstein v Skyviews and General Ltd:
- D flew over land and took photos from air
Held: Griffiths J dismissed the maxim, followed by Wandsworth v United Telephone Co, Owner only has right to such an extent of height as is necessary for the reasonable use and enjoyment of his land
Lower Stratum
United v Causby:
- The landowner must have exclusive control of the immediate reaches of the enveloping atmosphere
Kelsen v Imperial Tobacco:
- Advertisement board projected over C's land by 8ft, constituted trespass injunction granted
Anchor Brewhouse v Berkeley House:
- Injunction for owner against use of crane which swung over nieghbour's land
- Rights over Items on Surface of Land:
- Anything that is so attached to the land and forms part of the land itself
- "Superficies solo cedit" - a building becomes part of the ground
- Distinction must be made between FIXTURES | FITTINGS
A) Holland v Hodgson per Blackburn J:
- General Rule: Anything that is so attached (annexed) to the land, form part of the land itself
- Test to determine attachments (annexation) - unless express contractual reference is made otherwise:
1) Degree of Annexation:
- Extent to which the object is affixed to the land / property
Holland v Hodgson:
- Items resting on their own weight are regarded as chattels if there is no intention of making it part of land
Hamp v Bygrave:
- Items resting on their own weight are regarded as chattels as there is no permanence
TSB v Botham:
- If property is substantially fixed = fixture
- Intention of owner to affix must be considered - permanent improvement or intended instead to be a temporary installation
- Purpose of Annexation:
- Reason why the property has to be affixed to the land / property
Whether annexation was intended to increase the value of the land - D' Eyncourt v Gregory + Re Whaley:
- Items forms integral part of deco / architectural design of property = fixture
Whether annexation was for the better enjoyment of the item annexed - Berkley v Poulett:
- Item was not integral part of design of property and was for the convenience of the usage of the item itself
Express Reference in a Contract of Sale:
- Where items are expressly referred to in the contract, then the rules concerning fixtures and fittings are displaced
Taylor v Hamer:
- What a reasonable person who knows what the parties know when the contracted, would have taken it to mean
- Unless expressly mentioned that the items were going to be removed
B) Trees, Plants, Flowers and Wild Animals:
Trees, Plants and Flowers - Mosanto v Tilly:
- Whether cultivated or wild almost forms part and parcel of the land
Wild Animals - Wild animals cannot, whilst alive, be the subject of absolute ownership in English law - Blade v Higgs:
- Owner of land on which animals are has the right over that animal
- When dead, carcass belongs to the landowner on which animal is found dead
C) Lost Property
Elwes v Brigg Gas Company:
- If item has been found resting on the ground, finders may have claim
Parker v British Airways Board:
- Facts: Passenger found gold bracelet on airport lounge floor, gave it to airport authorities (owner of land), left his name + add to claim right if owner can't be found
- Held: 1) Finder acquires right if prop is abandoned and he takes it into his care. 2) If finder is trespassing, landowner has right. 3) Rights of true owner are above all and finder must make efforts to locate the true owner
[True owner > Finder > Landowner (if finder is trespasser)]
- Rights over Items Below the Surface of Land (Subterranean Property)
Bocardo SA v Star Energy Onshore:
- Choice of SC is whether:
- a) The Latin term applies to ownership of land in the UK; or
- b) Ownership of land is limited only to ownership of airspace above and soil and beneath, but only necessary for ordinary use and enjoyment of surface and structures on it and minerals beneath it
Gorst & Ors v Knight:
- Facts: C are proprietors of parts of a terraced house that is divided into 2 units. C's had ideas of transforming their units but needed more height that can only be done by digging into the subsoil. They obtained permission from local planning authority by D opposed the plan.
- Held: A long lease of the property does not include the area beneath the sub-soil
A) Minerals:
- In the past, the owner of the land on which the minerals are found
- Case of Mines (1568): the Crown has a prerogative right to mines of gold and silver
- Today, do minerals rightfully belong to the Crown?
B) Lost Property
Elwes v Brigg Gas Company:
- Prehistoric boat buried in ground of property
- Owner of property has the right over property unless can be proved otherwise
Waverley BC v Fletcher:
- Claim will be between owner of land and true owner
A Brief History - Feudalism, Real Actions and Equity
Feudalism
- Origins derived in feudal reform introduced by William the Conqueror from 1066 (Battle of Hastings)
- Most fundamental concepts of land resulted from socio-economic changes
- During this time, King was in control of land, any person would not have absolute ownership
- People were only given the right to "own bundles of rights in the land"
- 2 legal concepts were important to English land law - tenures and estates as no one could own land
Doctrine of Tenures:
- After 1066, "all lands belonged to the King"
- Subjects were only granted rights in the land as tenants of the King
- In return, tenants agreed to carry out certain duties for the King (instead of paying money)
- Tenures divided into Free and Unfree tenures
Types of Tenures:
- Free Tenures
- Spiritual - "Frankalmoign": Tenant to pray for the soul of the grantor
- Military - "Knight Service": Provision of armed horsemen for battle
- Agricultural - "Socage": Performance of agricultural services
- Unfree Tenures
- Villein Tenure
- Copyhold Tenure
The Doctrine of Estates
- An estate in land means a right of possession to that land
- Historically was referred to as a right of seisin
- Refers to time frame for the enjoyment of the land
- Walsingham's Case: "... an estate in the land is the time in the land, or land for a time"
-
Real Actions
- Equitable interests developed due to rights of land that are not recognised by common law
- Distinction between proprietary rights (Right in Rem) and personal rights (Right in Personam)
- Proprietary Rights - rights in property itself
- Personal Rights - rights against the individual
Trusts
- Trust is a "locking mechanism" to lock property to "safety"
- Its a tool in Equity used in land transactions