EXAM NOTES: Finders, Airspace and Fixtures

Question 1

Who is the primary owner of a found item

Answer 1

1. Moffatt v Kazana - true owner’s rights are superior to all others
2. finder must take reasonable measures to find owner
3. If likely to be treasure - s1 Treasure Act 1996

Question 2

Who gets a found item if it’s not treasure and the owner can’t be found?

Answer 2

1. Was the property embedded in or attached to the ground? Waverly v Fletcher
2. Parker v British Airways Board - if it’s a public place, did the owner manifest an intention to exercise possession and control?
3. if a public place or a shop which the public can access freely, the owner may not have sufficient control to claim lost items Bridges v Hawkesworth

Question 3

How can entering airspace be trespass?

Answer 3

if a structure overhangs your airspace

1. Kelsen v Imperial Tobacco – sign
2. Lemmon v Webb – tree branches
3. L & M Assurance v O & H Construction – crane

Question 4

when will entering airspace not be trespass?

Answer 4

innocent passage (only) for flying airplanes

1. Must be 500 feet above the land
2. Bernstein v Skyviews

Question 5

what are the two tests for annexation?

Answer 5

degree and purpose

Question 6

explain degree of annexation

Answer 6

fixed to the land by more than just its weight?

• Eg Aircool Installations v BT air conditioning equipment
• But not Dibble v Moore – moveable greenhouses

Question 7

explain purpose of annexation

Answer 7

more persuasive test

• Takes precedent over degree of annexation Hamp v Bygrave
• Purpose of installation looked at objectively Botham v TSB
• Part of the design eg garden statutes D’Eyncourt v Gregory means probably a fixture
• If fixed in order to better enjoy the chattel but not benefit the land, will remain a chattel eg display tapestry in Leigh v Taylor

Question 8

why does type of annexation matter?

Answer 8

Can’t remove fixtures after contracting to sell s62 LPA

Fixtures are part of the mortgaged land and are included in any sale by the mortgagee