Chapter 2 - What am i buying - The land itself Flashcards
What are we buying?
Land is made up of
Tangible & intangible items
The definition of Land is made up of
Statute & common law
Statute defines land as
**s205(1)(ix) LPA 1925*
o Tenure- the way land is held, i.e., FH/ LH
o Corporeal hereditaments- physical/ tangible objects, e.g., building
o Incorporeal hereditaments- various intangible rights associated with land, e.g., easements/ restrictive covenant
s205(1)(ix) LPA 1925
Statute definition of land
Common law presumptions / definition of land
He who owns the land owns everything extending to the heavens and to the depths of the earth
Whatever is attached to the ground becomes part of it
He who owns the land owns everything extending to the heavens and to the depths of the earth
Airspace
Underground
Surface
Airspace- Kelson v Imperial Tobacco Ltd (1957)
??????
OVERHANGING BILLBOARDS
OVERHANGING GUTTERING
Airspace- Anchor Brewhouse Developments v Berkley House (Docklands) Developments (1987)
The jib of a crane above the claimant’s property
Bernstein v Skyviews Ltd (1978)
Although ownership is said to be to the heavens, the owner is only allowed rights in the airspace to such a height as is necessary for the ordinary use & enjoyment of their land and structures on it
Civil Aviation Act 1982 s 76
No action for trespass or nuisance can lie in respect of flights of aircraft over property at a reasonable height. What is reasonable depends on the prevailing weather conditions at the time.
Underground
Tunneling under a neighbour’s property would amount to a trespass.
Underground- Exceptions
All mines of gold and silver belong to the Crown, as does treasure by virtue of the Treasure Act 1996.
Oil extracted from the ground under the Petroleum Act 1998 belongs to the Crown.
Bocardo SA v Star Energy UK Onshore Ltd (2009)
The defendants, owners of a licence granted by the Crown for oil extraction, bored a hole under the claimant’s land in Oxted, Surrey. Three pipelines were drilled diagonally into the substrata of the claimant’s land at a depth of 800 feet & terminating at a greater depth between 2,300 & 2,800 feet. By the end of 2007, over 1 million barrels of oil had been extracted.
It was held that there had been a trespass to the land of the claimants. The claimants were awarded damages by the Court of Appeal of £1,000. This nominal sum was granted as there was only a technical trespass, there being no interference with the claimant’s enjoyment of their property or interference with their rights.
Infrastructure Act 2015
fracking (drilling for shale gas) by oil & gas companies
o to take place below 300 metres under neighbouring land without the landowners’ permission.
The common law rule and the decision in Bocardo SA v Star Energy (2009) would still apply to the subsoil down to 300 metres.
o Coal belongs to the Coal Authority by virtue of the Coal Act 1938.
Surface- part of the land
Minerals
Buildings
trees
Remedies for trespass to land
Damages - Where actual damage has occurred
Injunction- To prevent intrusions
Self-help - Cutting of branches from overhanging trees
Fixture or Chattels
Fixture
An object that is attached to the land in such a way & for such a reason that it becomes part of the land
Whatever is fixed to land becomes part of it
s205(1)(ix) LPA 1925
…..buildings or parts of buildings……
Land to be transferred by deed
Fixtures- need to transferred by deed
•Goods/ Chattels- do not need to be transferred by deed
Deed- LPA 1925 s 52
Fittings & Contents Form should be completed
LPA 1925 s 52
Deed-
Holland v Hodgson (1872)
In this case, the question arose whether looms installed in a factory formed part of that factory- that is, were they part of the land?
Spinning looms were bolted to the floor of a mill. Being attached other than by their own weight, the looms were held to be fixtures.
Blackburn J said whether an object is a fixture or a chattel depends on 2 tests- Purpose of attachment & Permanence of attachment
whether an object is a fixture or a chattel
Purpose of attachment & Permanence of attachment
Purpose of attachment
he courts looks at the purpose of the attachment: o was the object attached for its own benefit- in which case it is likely to remain a fitting or chattel, or
o was it attached for the benefit of the land as a whole- in which case it may well be a fixture
Leigh v Taylor(1902)
A tapestry that was nailed to the wall of the premises…
Fitting.
o Normally, one hangs a picture, painting or tapestry to show the object itself to its best advantage and not to benefit the house as a whole.
D’Eyncourt v Gregory (1866)
Marble statues of lions in a garden…
Fixtures as they were there to increase the owner’s enjoyment of the land.
Permanence of attachment
Lampshades & curtains are unlikely to be considered as fixtures,whereas light fittings & fitted shelves probably will be.
Botham v TSB Bank plc (1996)
Lampshades & curtains are unlikely to be considered as fixtures,whereas light fittings & fitted shelves probably will be.
H E Dibble v Moore (1970)
Greenhouse
Fitting
Elitestone Ltd v Morris (1997)
A bungalow built on pillars
Fixture
Chelsea Yacht & Boat Co v Pope (2001)
A houseboat moored by cables and ropes with connection to mains water and power
Fitting
Taylor v Hamer(2002)
It is important to make quite clear, when selling land, what is being sold with the land & what is not.
•Flagstones = fixture
Peel Land & Property (Ports No. 3) Ltd v TS Sheerness Steel Ltd (2013)
Chattels
oCranes, transformers, a bar mill weighing over 800 tonnes & a continuous casting machine weighing over 500 tonnes that
were not attached to the land & had not become part of the structure or fabric of the building.
o A furnace, which was integrated into the building, was not considered removable.
