Chapter 1 - Introduction to property law

Question 1

What are the 6 characteristics that make land special?

Answer 1

It is permanent, in limited supply, connected, unique, socially and economically important, capable of supporting multiple interests

Question 2

Is Land Law concerned with real or personal property?

Answer 2

Land Law is concerned with ‘real property’ (in rem) meaning land.

Personal property relates to all other property that are not land

Question 3

What is the historical distinction between rights in rem and in personam?

Answer 3

Rights in rem (= real property) involved seeking recovery go the land

Rights in personam (= personal property) consisted of an action against a wrongdoer personally and for which the remedy would be compensation in the form of damages

Question 4

What is Land Law?

Answer 4

Law law if the body of law governing the relationship between the thing and the owner of that thing.

It is concerned with the nature, creation and protection of rights in land and also the content of those rights.

Question 5

What does “Cuius est solum eius est usque ad coelum et ad inferos mean”?

Answer 5

The land involves much more than just rights to the surface level of the soil and can encapsulate rights both above and below the surface.

• Airspace, subsoil, mines and minerals, water, flora and fauna, items found on land, buildings and fixtures

Question 6

Where is the definition go ‘land’ given?

Answer 6

The definition is given in s205(1)(ix) of the Law of Property Act 1925.

It is defined as including both the physical aspects of land as well as those rights of enjoyment of land that cannot be seen.

Question 7

What does lower stratum mean in airspace?

Answer 7

A landowner’s rights are restricted ‘to such height as is necessary for the ordinary use and enjoyment of his land and the structure upon it’ - Bernstein v Skyviews and General Ltd (1978)

The outcome will depend on the facts of the case and he courts’ assessment of all the circumstances. Lemmon v Webb (1894) - Gifford v Dent (1926) - Kelsen v Imperial Tobacco (1957) - Laiqat v Majid (2005) - Woolerton & Wilson v Richard Contain Ltd (1970) - Anchor Brewhouse Developments v Berkeley House (Docklands Developments) Ltd (1987)

Question 8

What does upper stratum mean in airspace?

Answer 8

Refers to the portion of airspace above the lower stratum. Beyond this height, a landowner has no right to the airspace. It belongs to the entire community - Re the Queen in Right of Manitoba and Air Canada (1978 - Canadian case)

Question 9

What did the case of Grigsby v Melville (1974) establish with regards to subsoil?

Answer 9

It established that the owner of land will usually also own any man-made and natural space below the land which is actually capable of being owned, whether the landowner is in fact able to access them

Question 10

What types of minerals a land owner is NOT entitled to under under s205(1)(ix) of the LPA 1925?

Answer 10

Any coal, natural gas, oil beneath the land, unlined gold or silver found in mines on or under land.

These are deemed by statute to be property of the Crown

Question 11

What is the rule regarding water under ss 24 & 27 of the Water Resources Act 1991?

Answer 11

Water which passes over or flows through land cannot be owned.

If one owns land which is, in part, covered with water, one does not own this water.

There can be ownership only as to very small volumes of water for agricultural or domestic household purposes.

If one wishes to extract greater volumes of water, one needs a licence granted by the National Rivers Authority.

Question 12

What did the cases of Stukeley v Butler (1615) & Blades v Higgs (1865) established in relation to wild animals?

Answer 12

When wild animals are alive, the landowner has only ‘qualified’ property rights over them. This gives him the right to catch and kills the animals on his land. Once wild animals have been caught and killed, the animals become the absolute property of the landowner.

Question 13

Do we need loss or damage to prove trespass in land law?

Answer 13

No. Interference into one’s airspace may constitute an actionable trespass per se.

Question 14

What did the case of Moffat v Kazana (1969) established in relation to items found on land?

Answer 14

The true owner, if found or came forwards, has a better claim to the item than the finder or occupier or owner of the land on which the item was found.

Question 15

Does the finder of an item have a duty to locate the owner?

Answer 15

Yes. If someone finds an item on land, they are under a duty to take reasonable steps to locate the true owner of the item. Generally, this means a duty to publicise and advertise that the item has been found and follow up on any responses to the ad

Question 16

What did the cases of Elwes v Brigg Gas Company (1886) & Waverley Borough Council v Fletcher (1995) establish in relation to items found embedded in, submerged on, or attached to the land?

Answer 16

If an item is found embedded in, submerged on (under or embedded in) the ground, or attached to the land and the true owner of the property cannot be found, it is the landowner who will have a better claim to the ownership of the object than the finder. This is so even where the landowner was unaware of the object’s existence prior to its find

Question 17

What did the case of Parker V British Airways Board (1982) establish in relation to items found on the land (i.e. unattached on the surface of the ground)?

Answer 17

The occupier or owner of the land may still have a superior claim to the item 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.

Question 18

What happens when an item is found unattached to the land and the owner is not identified?

Answer 18

If an item is found unattached on top of land, and the true owner of the item cannot be identified, the starting point is that finder will have the better claim to the ownership of the object but only if they can show:
- The item has been abandoned or lost and

• The finder has taken the item into their care and control

Question 19

What happens when the item is found by an employee of the land owner?

Answer 19

It is the employer (as principal) who enjoys a better claim to the item than the employee (as agent). M’Dowell v Ulster Bank (1899) - Byrne v Hoare (1965).

The same is true for independent contractors who find items on land in the course of their provision of services; namely, the party engaging their services will enjoy a superior claim to the item.

Question 20

What happens when the founder of an item is trespassing?

Answer 20

A trespasser finder will have no ownership rights in relation to an item discovered on land. Only where a find stems from the finder’s lawful presence on the land will they be able to make a claim to ownership of the item discovered. Waverley Borough Council v Fletcher (1995)

Question 21

What happens when the finder an item had dishonest intent?

Answer 21

A trespasser or finder who acts with dishonest intent (purposely concealing the find or failing to seek the true owner) would not be permitted to benefit from their wrongdoing. Equally a finder will be barred from claiming title to items found on land if the find springs from a dishonest or felonious act. Hibbert v Mckiernan (1948)

Question 22

What happens when an item is found but subsequently dispossessed by another?

Answer 22

In any dispute between the finder and the dispossessor as to ownership, the finder will have a superior claim to the item above any dispossessor and can recover the item from the dispossessor if it is in their possession.

The only person who will have a better claim to the item than the finder will be the true owner. Armory v Delamirie (1722)

Question 23

What happens when an item found on land amounts to treasure under the Treasure Act 1996?

Answer 23

If an item comes within the definition (set in s1 of the TA 1996) of treasure, it will be property of the Crown (under s4 of the act).

Question 24

What does s8 of the Treasure Act 1996 states with regard to the duty of the finder?

Answer 24

A person who finds an object which ‘he believes or has reasonable grounds for believing might be treasure’ has a duty to notify the coroner for the district in which the item was found within 14 days.

Under s8(3), failure to notify the coroner is a criminal offence (subject to a defence of reasonable excuse).

Question 25

Can the finder of a treasure be rewarded?

Answer 25

Yes. s10 of the Treasure Act 1996 allows for the payment of rewards to the finder of treasure.

However, there is a 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.

Question 26

What did the case of Elwes v Brigg Gas Company (1886) establish in relation to buildings?

Answer 26

Where a building has no foundations set into the ground, whether the building is part of the land will depend on the rules governing so-called ‘fixtures’

Question 27

What is the test for fixtures established in Elitestone Ltd v Morris (1997)?

Answer 27

Two key factors in determining where a chattel has become a fixture: after looking at the intention of the parties (set out in Holland v Hodgson (1871)), judges will look at the degree and purpose of annexation.

‘Was the item attached in order to bring about a permanent, lasting improvement to the land or was it attached merely temporarily for the purpose of increasing or making more convenient the use and enjoyment of the item?’

If the former is true, the item is a fixture; if it is the latter, it will amount to a chattel.

Question 28

Are proprietary rights binding against 3rd parties?

Answer 28

Yes. They are enforceable against third parties. Williams & Glyn’s Bank v Boland (1981) - Hunter v Canary Wharf (1997)

An example of proprietary rights are leases.

Question 29

Are personal rights binding against 3rd parties?

Answer 29

No. They are only binding against one person. It is a mere personal permission given to someone. Hill v Tupper (1863) - National Provincial Bank V Ainsworth (1965)

An example of personal rights are licences.

Question 30

What is the test for determining whether a right is personal or proprietary?

Answer 30

If a right is definable, identifiable by third parties, capable in nature of assumption by third parties, and have a degree of permanence or stability, it is more likely to be a proprietary right. National Provincial Bank v Ainsworth (1965)

Question 31

Why was the system of equity created?

Answer 31

Due to complaints of rigidity of common law and the system of writs (you can only bring a claim if you correspond to a variety of specific criteria).

Question 32

Who is the absolute owner of all land in England and Wales?

Answer 32

All land today is still held directly from the Crown and consequently if a landowner dies without having made a will, and there are no relatives, the land passes back to the Crown.

Question 33

What is an ‘estate’ in land?

Answer 33

An ‘estate’ in land describes how long a person is entitled to enjoy rights of use and possession of that land. The type of estate will determine the length of time that rights of use and possession can be enjoyed.

Question 34

What are the 2 types of legal estates under s1 of the LPA 1925?

Answer 34

• Freehold (also called estate in fee simple absolute in possession): closest thing to absolute ownership of land that is recognised in land law today. The person holding the freehold is known as the ‘freeholder’ or ‘freehold owner’.

Freehold ownership can last for generation after generation as the land is passed from heir to heir.

• Leasehold (also called the term of years absolute or simply as the lease): the person holding estate is known as the ‘leaseholder’, ‘lessee’, or ‘tenant’. The party granting the lease is the landlord (or ‘lessor’).

A leaseholder is entitled to use ad enjoyment of the land exclusively for a certain period of time and can transfer or sell (‘assign’) the leasehold to a 3rd party provided the term of the lease has not come to and end.

It is limited in duration (has a definite period set). During that period the leaseholder is taken as exercising rights akin to a temporary owner.

Question 35

What do we mean by ‘interest in land’?

Answer 35

An interest in land describes a right that someone enjoys over another’s land. It does not confer any rights of ownership.

Question 36

Are interests in land binding on 3rd parties?

Answer 36

Yes. Interests in land are enforceable not just between the original parties but also potentially against third parties.

Question 37

What are the rights capable of being created at law under Section 1(2) of the LPA 1925?

Answer 37

• Legal estates: freehold, leasehold
• Legal interests: profits, mortgages, rights to re-entry contained in a legal lease, rent charges

If a right is not covered by s1(2), it can only take effect as an equitable interest.

Equitable interests: All other interests not provided for in s1 of the LPA 1925: fee tail, life estate, restrictive covenants, options

Question 38

What are the formality requirements for a right to be legal?

Answer 38

• Must be in writing
• By a deed (as described under section 1(2) of the Law of Property (Miscellaneous Provisions) Act 1989)
• Registered

Question 39

Do we need the same level of formality in equity?

Answer 39

No. Equity, by contrast, is prepared to permit far greater informality (still require that the creation of rights in land be in writing under s2 of the LP(MP)A 1989 or s53 of the LPA 1925

Question 40

What are the requirements for a deed under section 1(2) of the Law of Property (Miscellaneous Provisions) Act 1989?

Answer 40

• In writing
• Makes it clear that it is intended to be a deed by the person making it
• Signed and witnessed by a person
• Is delivered

Question 41

What happens when the full requirements for formality are not met?

Answer 41

The right will NOT operate at law but in equity only.

Question 42

What is the specificity of the trust?

Answer 42

The trust allows for ownership to be split into ownership at law and ownership in equity so that there can be more than one owner of land. The result is that one person holds the legal title whilst another is able to hold the equitable title.

The effect is that the legal owner (trustee) acts almost as the manager of the land and holds the land for the benefit of the equitable owner (or beneficiary).

Question 43

Are trusts only express?

Answer 43

No. A trust can both be expressly created (I.e. created deliberately and formally, and implied.

Question 44

Are equitable interests as strong as legal interests?

Answer 44

No. Equitable interests are far more precarious than their legal counterparts and are less likely to bind third parties.

Under the Land Registration Act 2002, the holder of an equitable interest must take more steps to ensure their interest is protected and binding on third parties.

Question 45

What are the 2 systems for demonstrating title to land?

Answer 45

• Registered land: subject to provisions of both the LPA 1925 and the LRA 2002. If a land is ‘registered’, this means the land has been registered (recorded) at Land Registry.

When this is done, each title is provided with a unique title number and information concerning the owners of that land is also recorded. Once a person is registered as the proprietor, the State guarantees their ownership.

When the land is sold, the new owner must register the transfer at Land Registry and they will then become the new registered proprietor.

• Unregistered land: subject to the provisions of the LPA 1925 and the Land Charges Act 1972 (LCA 1972). The title to the land has not been registered (recorded) at Land Registry.

Question 46

What is the % of unregistered land in England and Wales?

Answer 46

About 14% of lands are not registered

Question 47

What did the case of Walsh v Lonsdale establish?

Answer 47

The presence of a signed contract is the bare formal minimum to create the equitable version of the interest the parties are trying to create.

Question 48

What effect did the the Judicature Acts 1873-1875 have?

Answer 48

To keep the jurisdictions of law and equity as separate but to combine the Court of King’s Bench and the Court of Chancery into one Supreme Court of Judicature.