Interests in Land General

Question 1

What is the two stage test for the existence of a legal right?

Answer 1

1. Is it capable of existing as either a legal or equitable right? S.1 LPA exhaustively defines those rights that may be legal.
2. Has the right been created by deed (limited exceptions, e.g. short legal leases) and registered?

Question 2

What are the requirements for creation of an equitable proprietary right in land by the doctrine of anticipation?

Answer 2

Walsh v Lonsdale
1. There must be a specifically enforceable contract (formalities under S.2 LP(MP)A 1989 observed, consideration provided, no bars to SP)
2. for a RECOGNISED proprietary interest in land (e.g. there cannot be an equitable proprietary licence).
In this case, equity treating as done what ought to be done, C acquires an equitable equivalent of the promised property right existing so long as the requirements for specific enforceability are met.

Question 3

Bernstein

Answer 3

A landowner’s right to the airspace above his land are limited to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it

Question 4

Star Energy

Answer 4

The owner of the surface land owns the substrata to the “depth of absurdity

Question 5

What is the twofold test for distinguishing chattels and realty?

Answer 5

1. Degree of Annexation- “If a structure can only be enjoyed in situ, and is such that it cannot be removed in whole or in sections to another site, there is at least a strong inference [it forms, and was intended to form, part of the realty and therefore ceases to be a chattel]” (Morris)
   Cf the houseboats in Mew which were designed as movable and could initially be moved w/o being destroyed; these were clearly chattels.
2. Purpose of Annexation – is the object fixed to the house for better enjoyment of the object as a chattel or for permanent improvement of the realty? (Leigh)

Question 6

Botham (illustrates the twofold test for fixtures)

Answer 6

o Here the bathroom fittings were necessary for a room used as a bathroom, significantly connected to the building and demonstrate an intention to permanently improve the building
o Carpets, blinds etc, on the other hand, were insubstantially connected to the building and only installed to be enjoyed in and of themselves

Question 7

Botham (test for fixtures)

Answer 7

Where an item is attached the test for distinguishing fixtures from the land is the purpose of the item and the purpose of the attachment

Question 8

Webb (tenant vs landlord’s fixture)

Answer 8

An item which is annexed to leased property for the purposes of the tenant’s trade or for ornamentation or utility, and is capable of being removed without causing substantial damage to the land and without causing the chattel to lose its usefulness following the removal will be considered a tenant’s fixture.

If the fixing of the item to the land is essential to its use, it will be a landlord’s fixture.

Question 9

Poster

Answer 9

The tenant’s right to remove a tenant’s fixture is an equitable interest.

Question 10

How long does the right to remove tenant’s fixtures last?

Answer 10

Webb suggests it only lasts for the term of the lease, but subsequent cases have accepted that the tenant is to be given a reasonable time within which to remove tenant’s fixtures.