Head 21: Landownership Flashcards
What is landownership law concerned with?
If you own a piece of property, what are the limits of your ownership.
How do you determine the boundaries of land?
This differs between the two registers.
1) For Land Register land, position as disclosed on title sheet (ordnance map) and verbal description (in the case of flats).
⁃ Nb since this isn’t to scale it may not be exact - there may be tolerances.
2) For Sasine registered land, either titles contain a bounding description[ This marks out the boundaries of the land, either by means of a verbal description or a plan or both.] or they do not, in which case boundaries depend on prescriptive possession (I.e. Where there has been possession for ten years which is open, peaceable and without judicial interruption, a title to the land as possessed will be established by positive prescription subject to the deed containing the description being valid.
- It can use measurements, pictorial representation or both.
- If there is an irreconcilable conflict between these methods there are rules for resolving I.e. The plan will prevail if it is declared to be ‘taxative’. It is also possible to have a boundary description by reference to an earlier recorded deed containing such a descriptionn. This means that there is no need to have a long verbal description or prepare a fresh plan every time the land is transferred.
What is ownership coelo usque ad centrum?
In both cases ownership is a coelo usque ad centrum [From the heaven to the centre of the earth.], subject to separate tenements (for which see below).
⁃ This means you can (in theory) build up or down as far as you want; this is, of course, subject to planning permission. But it does mean you own anything underneath the soil. But what happens if e.g. planes fly over your house - NO, there is a special statutory rule that aircraft can fly over your property and this is not trespass if the flight is at a reasonable height [Civil Aviation Act 1982, s 76].
⁃ Also this rule isn’t completely accurate in relation to separate tenements (see below)
- Above the ground it includes airspace, to a ceiling of 100km and anything that has acceded.
What are pertinents?
Ownership of a piece of land carries with it ownership of the ‘parts and pertinent’. These are things which are transferred to the new owner automatically, without the need for express provision. Nonetheless, it is standard in the disposition of land in the Sasine register to have a clause conveying parts and pertinent. This is usually omitted in the Land Register.
A pertinent is subsidiary heritable property beyond the boundaries of your property that you get when you own a piece of property (it is nonetheless part of your property).
⁃ e.g. A garage, car parking space, bin store, etc.
How does something become a pertinent?
Either the title deeds can say or it can occur by prescription (i.e. if there isn’t a clear express grant you can establish ownership of the pertinent by use - not very easy because you can’t prescribe beyond a boundary description so if it clear that the area of land falls outwith the boundary description then positive prescription is not possible).
What do pertinents divide into?
Pertinents divide into:
(1) Corporeal pertinents, subdividing into:
⁃ (a) Additional piece of land.
⁃ Must be used in association with the principal land. In practice requires to be fortified by (1) positive prescription [ In the land register, prescription beyond the boundaries on the map is clearly not possible. ]in the case of Sasine Register on the basis of a herbal title or where not the subject of a clear (2) express grant. It then appears on the title sheet. Cooper’s Trs v Stark’s Trs (1898) 25 R 1160.
- e.g. Garages and parking spaces serving a house or flat.
⁃ (b) Rights of common property.
⁃ This is in particular a feature of tenemental property - in tenements you own the flat and also have rights in common property (e.g. the close or stair). These rights of common property attach to the flat as pertinents.
⁃ In practice these are created either by express grant in original break-off conveyance or by Tenements (Scotland) Act 2004 s 3.
⁃ NB in the case of PMP Plus Ltd v Keeper of the Registers of Scotland 2009[ “a pro indiviso share with all the proprietors of all other dwellinghouses and flatted dwellinghouses erected or to be erected on the development…in and to those parts of the development which on completion thereof shall not have been exclusively alienated to purchasers of dwellinghouses or flatted dwellinghouses, which said parts comprise or shall comprise inter alia… other areas of open space”.] it was held that a description based upon an uncertain future event was not sufficient to describe the property clearly enough.
(2) Incorporeal pertinents
⁃ (c) Title conditions.
⁃ These are also pertinents (the right to enforce a title condition is a pertinent). i.e. the right to enforce a servitude or a real burden against the owner of the adjacent land is a right attached to ownership of the property.
What is the doctrine of separate tenements?
The doctrine of separate tenements is the exception to the rule that ownership of land is from he heavens to the centre of the earth.
Ownership a coelo usque ad centrum is subject to separate tenements - these are heritable property owned separately from the solum (soil) and is capable of separate ownership.
NB this has a different meaning to ‘tenement’ in the sense of a block of flats. A separate tenement is transferred in tis own right. There are two types of separate tenement: (1) conventional and (2) legal.
How can you Distinguish conventional STS from legal STS?
1) Convention STS: Things which would not normally be separate but the parties have actively made separate tenements.
2) Legal STS: Created by operation of law (they are implied).
What are convention separate tenements?
Where a section of land is separated from the remainder by express conveyance.
How are convention separate tenements created?
Created in a disposition (or feu disposition[ Prior to 28 November 2004.]) either by grant or by reservation.
⁃ Below ground available without restriction, eg minerals[ If you convey the minerals then the person gets the space that the minerals occupied after mining takes place.].
⁃ Above ground not generally allowed[ This means you cannot convey trees - the person who owns the land always owns the trees.].
Crichton v Turnbull 1946
Held that pipes lying on the ground can’t be owned separately from the ownership of the ground
Compugraphics International Ltd v Nikolic 2011
Overhanging cable blocks couldn’t be held separately from the ownership of the land.
But they must be corporeal.
What is the exception with regards to airspace?
The position with regards to brides and unoccupied airspace is unclear
But there is one exception: in relation to flatted property, if you own a flat above the ground floor you just own the airspace.
What is the other exception with regards to sporting rights?
But exception for the 65 cases of sporting rights converted from feudal reservations by a notice registered under s 65A of the 2000 Act. These are restricted to rights of fishing and game. The separate tenement created here is curious as it can be non-exclusive, e.g. The right to fish can be shared with the owner of the principal land which is contrary to the usual notion of separate tenements.
What are legal separate tenements?
Legal separate tenements arise by operation of law and are therefore always separately owned.
⁃ Impliedly reserved from Crown grants. But, as regalia minora, could be expressly granted either to owner of solum or (more usually) to someone else. Insofar as not granted they still belong to the Crown[ I.e. they are reserved to the Crown, but the Crown can grant them to others.]. These cane corporeal or incorporeal.
