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Land Law > 1. What is Land Law? > Flashcards

1. What is Land Law? Flashcards

Includes definition of land, rules relating to airspace

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1
Q

What are the 6 features of land that make it special?

A
  • Permanence
  • Limited supply
  • Connectivity
  • Uniqueness
  • Social and Economic Importance
  • Capacity to support multiple interests
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2
Q

Why is the permanence of land a special feature?

A
  • The degree of permanence associated with land gives it a stability, which means that dealings with it offer a sense of security and commitment. This explains why investment in land is often seen as a ‘safe option.’
  • The permanence of land means that we can choose how we enjoy it, whether we want to pass it on to others or split the enjoyment of it through means such as renting.
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3
Q

Why is land in limited supply an important feature?

A
  • Land cannot be manufactured if it ‘runs out.’
  • Land lawyers are therefore always interested in making land available and marketable so that its maximum potential can be realised.
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4
Q

Why is the connectivity of land an important feature of British Land Law?

A

A parcel of land never exists in isolation. Understanding the rights and relationships operating on land often involves considering the rights of adjoining, connected landowners.

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5
Q

Why is land’s uniqueness an important feature?

A
  • Uniqueness is a price inflator.
  • People can make personal attachments to land based on its uniqueness, which makes deprivation of that land (e.g. by repossession or eviction) difficult to accept.
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6
Q

What is ‘real’ property?

A

Real property consists of land

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7
Q

What is ‘personal’ property?

A

Personal property is all other property that is not land

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8
Q

Does land law concern real or personal property?

A

Real property

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9
Q

Where can the definition of ‘land’ be found?

A

Section 205(1)(ix) of the Law of Property Act 1925 (LPA 1925)

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10
Q

How does s.205(1)(ix) LPA 1925 define land?

A

'’Land’ includes land of any tenure, mines and minerals… and other corporeal hereditaments… and other incoporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land.’

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11
Q

What does the definition of land in the Law of Property Act 1925 tell us?

A

It tells us that land includes not only physical features, but also intangible rights that are not necessarily visible on the land but nonetheless important (e.g. leases, easements, mortgages.)

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12
Q

What is the ‘lower stratum’, in reference to the extent of property rights?

A

The lower stratum is a category of airspace created by the common law, which is concerned with the portion immediately above a landowner’s land.

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13
Q

Which case tells us how far the ‘lower stratum’ extends, and therefore the effect that this has on a landowner’s property rights?

A

Bernstein of Leigh v Skyviews & General Ltd (1979)

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14
Q

What happened in Bernstein v Skyviews (1979)?

A

The plaintiff, Lord Bernstein, attempted to sue Skyviews for trespass. Skyviews were a company that took aerial photos of land and offered them for sale to residents of the houses.

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15
Q

What was the judgment in Bernstein v Skyviews (1979)?

A

The court rejected Bernstein’s claim that his property rights had been infringed.
Griffiths J stated that ‘landowners only enjoy rights above their property ‘to such height as is necessary for the ordinary use and enjoyment of the land.’’

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16
Q

Landowners only enjoy rights above their property…

A

…‘to such height as is necessary for the ordinary use and enjoyment of the land.’ (Bernstein v Skyviews)

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17
Q

How do you determine what ‘such height is as necessary for the ordinary use and enjoyment of land’ means?

A

You can determine this by using case law, and assessing how the Bernstein test has been interpreted.

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18
Q

What case law is there to help determine the meaning of the Bernstein test?

A
  • Lemmon v Webb (1894)
  • Gifford v Dent (1926)
  • Kelsen v Imperial Tobacco (1957)
  • Laiqat v Majid (2005)
  • Woolerton & Wilson v Richard Costain Ltd (1970)
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19
Q

What happened in Lemmon v Webb (1894) - Bernstein test of airspace

A

Tree branches were overhanging from one parcel of land to another. This amounted to an interference with the neighbour’s airspace, so it was lawful for the neighbour to chop off the overhanging branches (provided this did not involve entering the other’s land).

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20
Q

What happened in Gifford v Dent (1926) - Bernstein test of airspace

A

An advertising sigh reached 4ft 8 inches over the claimant’s courtyard. This amounted to a trespass of the claimant’s airspace.

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21
Q

What happened in Kelsen v Imperial Tobacco (1957) - Bernstein test of airspace

A

An advertising sign reached 8 inches into the airspace above the claimant’s shop. This amounted to a trespass of the claimant’s airspace and an injunction was granted, which required the sign to be removed.

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22
Q

What is an injunction?

A

An equitable remedy in the form of a court order, which compels a party to do (or not do) a specific thing.

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23
Q

What happened in Laiqat v Majid (2005) - Bernstein test of airspace

A

An extractor fan extended across a neighbour’s back garden by just 75cm. This amounted to a trespass.

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24
Q

What happened in Woolerton & Wilson v Richard Costain Ltd (1970) - Bernstein test of airspace

A

A crane standing on one parcel of land but swinging across neighbouring land amounted to a trespass and injunctions were granted to stop this.

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25
Q

How has the invention of flight transformed the right to airspace? What statutory intervention exists to regulate plane flying?

A
  • aircraft routinely fly over urban and residential areas at night.
  • s.76 of the Civil Aviation Act 1982 states that neither nuisance nor trespass can apply when aircraft are flying in compliance with relevant regulations.
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26
Q

Apart from the Civil Aviation Act 1982, which legislation also exists to regulate flying aircraft?

A

Section 3(5) of the Rules of the Air Regulations 2007.
- without specific permission of the Civil Aviation Authority, aircraft: 1) must not fly closer than 500 feet to any person, vessel, vehicle or structure; and 2) must not fly, in a congested city or town area, below 1,000 feet above the highest fixed obstacle.

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27
Q

What is the upper stratum?

A

The upper stratum refers to the airspace above the lower stratum.

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28
Q

Is the upper stratum subject to ownership by anyone?

A

No - Bernstein established that landowners’ rights are limited to the lower stratum, and only extend to ‘such height as is necessary for the ordinary use and enjoyment of the land.’ Beyond this height, a landowner has no rights to the airspace.

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29
Q

Can a landowner claim that they own the subsoil under a property?

A

YES
- The owner of land will usually own any man made and natural space below land which is actually capable of being owned.
- These spaces will be owned by the landowner even if they had been created by another party, and even when the landowner is not able to access them.

30
Q

What are a landowner’s rights in relation to mines and minerals?

A
  • At common law, an owner of land is said to be entitled to ‘all mines and minerals’ within the land (codified in s.205(1)(ix) LPA 1925.
  • Although any coal, natural gas and oil beneath the land are deemed by stature to be property of the crown.
  • Any unmined gold or silver found under land is also property of the Crown.
31
Q

What are a landowner’s rights in relation to water?

A

Water which passes over or flows through land cannot be owned.
If someone owns land which is, in part, covered with water, they also do not own this water.
Very small volumes of water (for agricultural or domestic purposes) can be owned.

32
Q

What are a landowner’s rights in relation to trees, plants, flowers and wild animals?

A
  • Land is taken to include all the trees, plants, hedges and flowers growing, whether planted by the landowner or growing wildly on the property.
  • The law relating to wild animals depends on whether they are dead or alive.
  • When wild animals are alive, the landowner has the right to catch and kill the animals on their land. Once wild animals have been caught and killed, the animals become the absolute property of the landowner.
33
Q

What is the law relating to an item found on land, when the owner of the item can be located or comes forward?

A
  • If the true owner of an item is located or comes forward, their claim trumps that of the finder or occupier or owner of the land on which the item was found. (Moffat v Kazana) (1969).
  • Unless and until it can be proven that the true owner has abandoned or lost the item, the true owner remains entitled to it.
34
Q

What happened in Moffat v Kazana (1969)? - items found on land

A
  • Mr Russell stored a biscuit tin containing bank notes in the attic of his house. Mr Russell died, his house was sold, and the tin found by a repairman working for the new landowner. The landowner claimed that they owned the tin and bank notes as it formed part of the house sale.
  • The court held that Mr Russell’s relatives were entitled to the tin and money, as Mr Russell remained the true owner of the tin and notes - he had not abandoned them.
  • The tin and its contents had not passed automatically on the sale of the property because the tin and notes were chattels.
35
Q

What is the law relating to when an item is found embedded in, submerged on or attached to land?

A

Where a finder ventures onto another’s land and finds an item in the ground (e.g. using a metal detector) and the true owner of the property cannot be found, the landowner has a better claim to ownership than the finder. This is so even when the landowner was unaware of the object’s existence prior to its find.
- This rule was set out in Elwes v Brigg Gas Company (1886) and confirmed by the CofA in Waverley Borough Council v Fletcher (1995).

36
Q

What happened in Elwes v Brigg Gas Company (1886) - Items found in land

A

A tenant of a leased property was given permission to excavate the land. During the excavation, a large prehistoric boat was uncovered. The court held that, given the absence of a true owner, and despite the landlord having no prior knowledge of the boat, the landowner was entitled to claim ownership of it and not the finder.

37
Q

What happened in Waverley Borough Council v Fletcher (1995) - Items found in land

A

A metal detectorist found a gold brooch when digging below the surface of a public park owned by Waverley Borough Council. The Council was identified as the rightful owner of the gold brooch, given that the true owner could not be found, and the brooch was found on land that the Council owned.

38
Q

What is the law when a finder discovers an item ON land?

A

When a finder discovers an item on land, and the true owner cannot be identified, the finder will have the better claim to ownership of the object but only if they can show that:
- the item has been abandoned or lost;
- the finder has taken the item into their care and control.
HOWEVER
- Even with the two above requirements being satisfied by a finder, the landowner or occupier of the land may still have a superior claim of ownership if it can demonstrate that, before the item was found, the occupier or owner had an intention to exercise control over the land and the things that may be found on it.

39
Q

What case laid down the principles relating to items found on land?

A

Parker v British Airways Board (1982)

40
Q

What were the facts of Parker v British Airways Board (1982)?

A
  • A gold bracelet was found on the floor in a British Airways lounge at Heathrow Airport by an airline passenger.
  • BA were the occupiers of the land.
  • The passenger handed the bracelet to BA staff but left his contact details in case no one came forward to claim the bracelet.
  • No one did come forward, but BA sold the bracelet for £850 and did not contact the passenger.
  • The passenger claimed for the loss of value, arguing that, as the finder of the item and having taken control of it, he had a property right in the item and that this right was superior to that of BA’s.
41
Q

What was the legal issue in Parker v British Airways Board (1982)?

A

Who owned the bracelet found by the passenger, unattached on land occupied by BA, when the true owner could not be identified?

42
Q

What was the outcome of Parker v British Airways Board (1982)?

A

The court allowed the passenger’s claim.
- The passenger could show that the bracelet had been lost or abandoned and taken into his control.

43
Q

What is needed for an owner or occupier of land to hold superior claim to the title of ownership of a lost item, when an item is found on land by someone else?

A

A landowner or occupier must demonstrate that they had an intention to exercise CONTROL (key word here) over the land and anything found on it, in order to have a superior claim over a finder.

44
Q

What is the law when the finder of an item is an employee of the occupier or owner of the land on which the item is found?

A

The employer enjoys a better claim to the item than the employee.

45
Q

In which case does Donaldson LJ explain the rules relating to the finder of an item being an employee of the occupier or owner of the land?

A

Parker v British Airways Board 1982

46
Q

What does Donaldson LJ describe the law as being in Parker, when addressing the finding of an item by an employee of an occupier or owner of land?

A

‘Any servant or agent who finds a chattel in the course of his employment… and who takes it into his care and control does so on behalf of his employer pr principal.’

47
Q

How does the case Byrne v Hoare (1965) pose some uncertainty on Donaldson LJ’s explanation of what happens when a finder is an employee of an occupier of land or landowner?

A

Donaldson LJ’s explanation referred to items found during a ‘course of employment.’
In Byrne v Hoare, a police officer was entitled to keep a gold ingot that he had found next to a theatre, because he had not found the item in his capacity as a police officer but rather in his personal capacity.
However NOTE: Case law leans predominantly in favour of the employer.

48
Q

Does a tresspassing finder ever have ownership rights in relation to an item discovered on land?

What case explained this?

A

No!
The case of Waverley explained this.

(metal detecting in a park)

49
Q

A finder will be barred from claiming title to items found on land if the find springs from a ________ or ____ act.

What case can be used to support this? Think golf balls

A

dishonest or felonious act.
Hibbert v McKiernan (1948)

50
Q

Where an item is found but taken by someone else…

A

… the finder will have a superior claim to the item above any dispossessor and can recover the item from the dispossessor if they have it. The only person with a better claim to the item than the finder would be the true owner.

Armory v Delamirie (1722)

51
Q

Name the case that set the precedent for an item being found but dispossessed by someone else.

A

Armory v Delamirie (1722)

52
Q

Where can the relevant law on treasure be found?

A

the Treasure Act 1996

53
Q

Where can you find the definition of treasure?

A

Section 1 of the Treasure Act 1996

54
Q

What is the definition of treasure? What does ‘treasure’ include?

S.1 TA 1996

A
  • any object (other than a coin) at least 300 years old and at least 10% precious metal by weight;
  • one of at least two coins in the same find, at least 300 years old and at least 10% precious metal;
  • one of at least ten coins in the same find and at least 300 years old;
  • any object that would hvae been regarded as ‘treasure trove’ under the old law but does not fall into the above categories;
  • any object (whatever precious metal composition) found in the same place as or previously had been together with another object that is treasure.
55
Q

What does S.2 of the Treasure Act 1996 allow the Secretary of State to do?

A

S.2 allows the Secretary of State to amend the meaning of ‘treasure’ so as to includeany class of object considered of outstanding historical, archeological or cultural importance.

56
Q

How does s.3 of the Treasure Act define the meaning of ‘coin’?

A

a ‘coin’ includes any metal token reasonably assumed to be used as or instead of money.

57
Q

You’ve located something that you think might be treasure. Where can you find the meaning of treasure?

A

S.1 of the Treasure Act 1996.

58
Q

You’ve located something that you think might be treasure. It is a round metal token, that you think might have one day been a coin. Where can you find the definition of a coin?

A

S.3 of the Treasure Act 1996.

59
Q

What is the meaning of a ‘precious metal’, as in s.3 of the Treasure Act 1996?

A

a ‘precious metal’ is gold or silver.

60
Q

You’ve found an item that you believe may be treasure. It looks like copper. Where can you find the definition of a precious metal, and does this item qualify?

A

A precious metal is defined in S.3 of the Treasure Act as being silver or gold, so a copper item does not qualify as treasure.

61
Q

What does s.4 of the Treasure Act say?

A

s.4 of the Treasure Act states that when treasure is found, it belongs to the Crown.

62
Q

In what section of the Treasure Act is a duty placed on the finder of treasure to notify the coroner?

A

Section 8 of the Treasure Act 1996

63
Q

Within how many days should a potential treasure discovery be reported to the local coroner, according to s.8 of the Treasure Act 1996?

A

14 days (starting on the day after the find, or the day that the finder reasonably believes the item to be treasure).

64
Q

Is the failure to notify a local coroner of newly found treasure a criminal offence?

A

Yes

According to s.8(3) of the Treasure Act. 1996.

65
Q

What happens once a coroner is notified of an item that is potentially treasure?

A
  • An inquest is held to determine if the item is treasure or not.
  • If the item is regarded as treasure, it is first offered to the British Museum. If refused, the item is offered to other local museums who will pay for the item.
  • A valuation by the Treasure Valuation Committee takes place.
66
Q

What does s.10 of the Treasure Act 1996 state?

A

S.10 allows for the payment of rewards for the finder of treasure.

67
Q

What money does the finder of an item that is treasure often receive?

What about the owner of the land on which the treasure was found?

A
  • The finder often receives 50% of whatever the museum paid for the item.
  • The owner of the land on which the item was received also receives 50%.
68
Q

Would a finder of an item of treasure still receive 50% of the proceeds in reward, if the way that they obtained the treasure was unlawful? (i.e. they did not have permission to be on the land when the find was made?)

A
  • No, they would likely not receive the standard 50% of proceeds.
  • There is scope to reduce or refuse altogether the finder’s reward, if they did not have permission to be on the land when the find was made.
69
Q

In which year did the government consider revising the defintion of treasure in the 1996 Act?

A

2019

70
Q
A

Land Law (2 decks)

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