Property Law

What is Land? | Land Law – SQE1 & SQE2 Exam

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What is Land?
• Non-owners can only have a proprietary right (and enforce it in rem and
against a third party) if the subject matter is land
o (Except in a Trust)
• You must use a ‘Deed’ to transfer land
• What is included when you buy/mortgage a house?
o S 62 Law of Property Act 1925 – land includes fixtures
• Must be on ‘the list’ of rights which can exist as estates or interests in
land: Ss 1(1); 1(2) and 1(3) Law of Property Act (LPA) 1925
How to work out what is land
• LPA 1925 S 205(1)(ix) – ‘land includes…’ so non-exhaustive
o Physical land
o Buildings (corporeal hereditaments)
o Intangible rights (e.g. right of way over neighbour’s land)
(incorporeal hereditaments)
Airspace
• Upper air space: Bernstein v Skyviews
o Trespass for flying over his property
o Skyviews not trespassed:
o The freeholder’s rights restricted to such height as is
necessary for the ordinary use and enjoyment of the land.
• Lower airspace: Kelsen v Imperial Tabacco
o Fairly low down will be trespass if into owner’s property
• Tree branches overhanging: Lemman v Webb
o May seek injunction or cut off and pass back the branches
Ground below
• Ground below: Grigsby v Melville
o Extends to everything below the surface, except what the state has
taken by statute that is vesting in it
o Applied in Star Energy v Bocardo
§ Bocardo sued for trespass for drilling under land
o FRACKING: Infrastructure Act 2015 – no trespass below 300m,
so no need for freeholder’s consent when drilling that deep.
Natural produce
• Natural produce – included as part of land, cultivated produce is not
o Apple trees that are cultivated are not part of land
© Liam Porritt 2020 2
Things found
• Things found
1. Lost: owner has rights if can be found (Moffatt v Kazana), if not…
2. Metal content:
§ Of age (≥ 200 years old) or part of archaeological find =
Treasure and vests in the Crown (s 4(1) Treasure Act 1996)
§ If reasonable grounds for believing that item may be ≥ 200
years old (s 1(1)(b) TA 1996), finder must notify the
coroner within 14 days (s 8 TA 1996)
3. Object found in or attached to the land = LAND (Waverley v
Fletcher)
4. If freeholder has made effort (Parker v British Airways) to control
the land and who comes onto it, he might by implication have
demonstrated an intention to control anything found on the land,
and therefore part of land and his.
5. Finding something on the land belongs to finder where insufficient
effort to control land and who comes onto it
© Liam Porritt 2020 3
Fixtures vs chattels
• Fixtures (s.62 LPA)
o Degree of annexation: Melluish v BMI Ltd
§ More firmly fixed, more likely to be fixture
§ Lifts, aircon, pool etc. = fixtures
o NB: Degree of annexation gives presumption, and purpose of
annexation can rebut this (Holland v Hodgson)
o Dibble v Moore: Moveable greenhouses, not fixed, therefore
chattels
o Mew v Tristmire Ltd – Man argues houseboat resting on platform
was fixture – lost, as not annexed.
o Purpose of annexation: Berkley v Poulett; Leigh v Taylor – the
degree of annexation test establishes an assumption, which may
then be rebutted or confirmed here (so this is more important
test)
§ Why is it fixed to land?
§ Enjoyment of thing itself?
§ Enhancement of land as a whole? – per Roch LJ (Botham): if
the item ‘is intended to be permanent and to afford a
lasting improvement to the building’, it is a fixture.
o Berkley v Poulett – Ornamental = chattel – Pictures attached by
screws, but annexed for enjoyment as pictures and so not fixtures.
o Leigh v Taylor – Tapestry, again to be enjoyed, therefore not fixture
o Unless part of Design scheme – D’Eyncourt v Gregory – something
standing on own weight, but may be deemed fixture if part of
overall design scheme, e.g. statues, classical benches
o Botham v TSB Bank plc
§ Mortgage to TSB bank – repossession
§ Sold flat and contents
§ Some of contents were not fixtures, Mr Botham said
§ See examples:
• Bathroom fittings, inc. towel rails, toilet roll holders
= fixtures
• Unless stuck down, carpets, curtains and blinds =
insufficient degree of annexation for fixture = chattel
• White kitchen goods remaining in place by their own
weight = chattels
o Elitestone v Morris – Prefabricated bungalow with low degree of
annexation to land, attached to electricity and sewage, but that was
all = Was part of land because could not be moved without
destroying it – it was intended to be part of the land
o Taylor v Hamer – flagstones in garden = fixtures, due to degree of
annexation + purpose in improving the property as a whole
• Non-owners can only have a proprietary right (and enforce it in rem and
against a third party) if the subject matter is land
o (Except in a Trust)
• You must use a ‘Deed’ to transfer land
• What is included when you buy/mortgage a house?
o S 62 Law of Property Act 1925 – land includes fixtures
• Must be on ‘the list’ of rights which can exist as estates or interests in
land: Ss 1(1); 1(2) and 1(3) Law of Property Act (LPA) 1925
How to work out what is land
• LPA 1925 S 205(1)(ix) – ‘land includes…’ so non-exhaustive
o Physical land
o Buildings (corporeal hereditaments)
o Intangible rights (e.g. right of way over neighbour’s land)
(incorporeal hereditaments)
Airspace
• Upper air space: Bernstein v Skyviews
o Trespass for flying over his property
o Skyviews not trespassed:
o The freeholder’s rights restricted to such height as is
necessary for the ordinary use and enjoyment of the land.
• Lower airspace: Kelsen v Imperial Tabacco
o Fairly low down will be trespass if into owner’s property
• Tree branches overhanging: Lemman v Webb
o May seek injunction or cut off and pass back the branches
Ground below
• Ground below: Grigsby v Melville
o Extends to everything below the surface, except what the state has
taken by statute that is vesting in it
o Applied in Star Energy v Bocardo
§ Bocardo sued for trespass for drilling under land
o FRACKING: Infrastructure Act 2015 – no trespass below 300m,
so no need for freeholder’s consent when drilling that deep.
Natural produce
• Natural produce – included as part of land, cultivated produce is not
o Apple trees that are cultivated are not part of land
© Liam Porritt 2020 2
Things found
• Things found
1. Lost: owner has rights if can be found (Moffatt v Kazana), if not…
2. Metal content:
§ Of age (≥ 200 years old) or part of archaeological find =
Treasure and vests in the Crown (s 4(1) Treasure Act 1996)
§ If reasonable grounds for believing that item may be ≥ 200
years old (s 1(1)(b) TA 1996), finder must notify the
coroner within 14 days (s 8 TA 1996)
3. Object found in or attached to the land = LAND (Waverley v
Fletcher)
4. If freeholder has made effort (Parker v British Airways) to control
the land and who comes onto it, he might by implication have
demonstrated an intention to control anything found on the land,
and therefore part of land and his.
5. Finding something on the land belongs to finder where insufficient
effort to control land and who comes onto it
© Liam Porritt 2020 3
Fixtures vs chattels
• Fixtures (s.62 LPA)
o Degree of annexation: Melluish v BMI Ltd
§ More firmly fixed, more likely to be fixture
§ Lifts, aircon, pool etc. = fixtures
o NB: Degree of annexation gives presumption, and purpose of
annexation can rebut this (Holland v Hodgson)
o Dibble v Moore: Moveable greenhouses, not fixed, therefore
chattels
o Mew v Tristmire Ltd – Man argues houseboat resting on platform
was fixture – lost, as not annexed.
o Purpose of annexation: Berkley v Poulett; Leigh v Taylor – the
degree of annexation test establishes an assumption, which may
then be rebutted or confirmed here (so this is more important
test)
§ Why is it fixed to land?
§ Enjoyment of thing itself?
§ Enhancement of land as a whole? – per Roch LJ (Botham): if
the item ‘is intended to be permanent and to afford a
lasting improvement to the building’, it is a fixture.
o Berkley v Poulett – Ornamental = chattel – Pictures attached by
screws, but annexed for enjoyment as pictures and so not fixtures.
o Leigh v Taylor – Tapestry, again to be enjoyed, therefore not fixture
o Unless part of Design scheme – D’Eyncourt v Gregory – something
standing on own weight, but may be deemed fixture if part of
overall design scheme, e.g. statues, classical benches
o Botham v TSB Bank plc
§ Mortgage to TSB bank – repossession
§ Sold flat and contents
§ Some of contents were not fixtures, Mr Botham said
§ See examples:
• Bathroom fittings, inc. towel rails, toilet roll holders
= fixtures
• Unless stuck down, carpets, curtains and blinds =
insufficient degree of annexation for fixture = chattel
• White kitchen goods remaining in place by their own
weight = chattels
o Elitestone v Morris – Prefabricated bungalow with low degree of
annexation to land, attached to electricity and sewage, but that was
all = Was part of land because could not be moved without
destroying it – it was intended to be part of the land
o Taylor v Hamer – flagstones in garden = fixtures, due to degree of
annexation + purpose in improving the property as a whole

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