Land - Nature of Land (1) Flashcards
What is land?
Land: Land is ‘land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical, or made in any other way) and other corporeal hereditaments’ (s205(1(ix) LPA 1925).
Scope: This includes land itself, buildings upon it, and rights over it.
Traditional Scope of Land
Traditional Scope of Land: Land was historically said to ‘extend upwards to infinity and downwards to the earth’.
Modern Scope of Land
Modern Scope of Land: To reflect the technicalities of modern ownership, case law now restricts land (in the owned sense).
Upwards: Land ownership is restricted to the extent of ordinary use and enjoyment of the land and the structures upon it (Bernstein v Skyways).
Downwards: Ownership with respect to the earth below land is restricted by statute.
Coal: The Coal Authority claims all coal deposits in the UK (s9 Coal Industry Act 1994).
Oil and Gas: The Crown claims all oil and gas deposits in the UK (Petroleum Act 1934).
Treasure: The Crown claims all treasure.
Cellars: Cellars must be confined within the borders of the topsoil land, unless permission is sought of neighbouring properties (Grigsby v Melville).
Ownership of Land
Ownership of Land: The Crown technically owns all land, however it is seen to grant ‘Doctrines of Tenure’ to freehold owners in the country.
What are fixtures and chattels?
Fixtures and Chattels: Fixtures and chattels are ‘things found on the land’. Determining the difference is important, as the former typically passes on sale of land whilst the latter remains in possession of the seller.
(1) Fixtures: Fixtures are ‘things attached to the land’.
Effect: On sale of land, the fixtures are included, unless the deed of sale or contract of exchange stipulates otherwise, or the fixture does not belong to the legal owner of the property.
(2) Chattels: Chattels are things not attached to the land, ‘moveable things’. Affixation may convert a chattel to a fixture. However, the rules can be hazy here, attachment is not a strict rule (below).
Effect: On sale of land, chattels are usually not included.
How is the difference between fixtures and chattels determined?
Determining The Difference: In the absence of an express distinction in deed or contract, two tests are applied to distinguish fixtures from chattels (Berkley v Poulett).
(1) Method and Degree of Annexation: Things attached to the land or property are presumed to be fixtures, things that are moveable or resting on their own weight are presumed to be chattels (Culling v Tuffnel).
Maxim: Whatever is attached to the soil becomes part of it (quicquid plantatur solo, solo credit).
Removal Damage: If a thing is attached to the land in such a way that its removal would damage the property, it is almost certainly a fixture.
(2) Purpose of Annexation: Things on the land for the sake of improving the land are presumed to be fixtures, but if positioned simply for the owner’s convenience are more likely to be chattels.
Inconsistent Tests: This test rebuts the first in instance of discrepancy (Hamp v Bygrave).
Relevant Case Law
Relevant Case Law: A number of cases help to distinguish fixtures from chattels (but are often inconsistent).
(1) Fixtures: Spinning looms bolted the floor (Holland v Hodgson); freestanding items that contributed to the architectural design of the property, such as statues (D’Eyncourt v Gregory); a bungalow, as it was not designed to be removable (Elitstone v Morris); kitchen units, as removal would damage the property (Botham v TSB Bank).
(2) Chattels: A tapestry secured to a wall, as affixation was a requirement of its amenity (Leigh v Taylor); fitted carpets, curtains, light fittings and gas fires, as removal would not damage the property (Botham v TSB Bank).
What are estates in land?
Estates in Land: Having an ‘estate in land’ means an individual is the legal owner of it. There are two estates in land, ‘freeholds’ and ‘leaseholds’ (s1(1) LPA 1925).
Freeholds
Freehold: A freehold is land outrightly owned by the owner. It is known as an estate in ‘Fee Simple Absolute in Possession’.
Fee: The estate is capable of being inherited.
Simple: The estate may pass to any class of heir.
Absolute: Ownership is not contingent on any event, or limited in any way.
In Possession: The owner is currently in possession of the land, it is not contingent.
Leaseholds
Leasehold: A leasehold means the owner has exclusive possession of the land for a specific period of time. It is known as having an estate in a ‘term of years absolute’.
Requirement: The period of time must be certain, i.e. ‘for ten years’ but not ‘for the foreseeable future’.
What are different interests in land?
Interests in Land: Interests in land (other than estates) are those which impose a benefit or burden over land, but which fall short of a right to ownership. They may be legal, equitable, or statutory.
Legal Interests
Legal Interests: These must be fee simple absolute in possession or in a term of years absolute.
(1) Legal Easements: Rights attached to one piece of land which impose a corresponding burden over another piece of land, created using the correct legal formalities.
(2) Legal Mortgages: A charge over the land, created using the correct legal formalities.
Equitable Interests
Equitable Interests: Interests in land which are neither legal estates or legal interests may only take effect in equity (s1(3) LPA 1925).
(1) Trust Rights: Beneficial interests over the land held in trust.
(2) Covenants: Burdens over the land which require the owner to perform or refrain from performing certain actions.
(3) Estate Contracts: Contracts to bind parties to a conveyance prior to full completion of sale.
(4) Equitable Leaseholds: Leases which were not created using the correct legal formalities (Walsh v Lonsdale).
(5) Equitable Easements: Easements which were not created using the correct legal formalities.
Statutory
Statutory Interests: Interests in land which arise by virtue of statute.
(1) Spousal Rights: Non-owning legal spouses have the right to occupy their current, intended or former marital home, in addition to or independently of other rights (s30 Family Law Act 1996).
How are legal estates and interests created?
Creation of Legal Estates and Interests: Generally a deed is required to create a legal estate or interest in land (s52(1) LPA 1925).
(1) Valid Deed: Valid deeds must be in writing, be clear on their face that they are deeds, be signed by the conveyor and an attesting witness, and delivered (dated) (s1 LP(MP)A 1989).
(2) Parol Lease Exception: Legal leases not exceeding three years may be conveyed without deed, so long as they take effect immediately in possession, and are granted for best rent without the acquirer paying a premium (s54(2) LPA 1925; Fitzkriston LLP v Payani).
How are legal estates and interests disposed of?
Disposition of Legal Estates and Interests: Disposition, typically sale, of a legal estate or interest in land also generally requires a deed (s52(1) LPA 1925).
(1) Valid Deed: Valid deeds must be in writing, be clear on their face that they are deeds, be signed by the conveyor and an attesting witness, and delivered (dated) (s1 LP(MP)A 1989).
How are equitable interests created?
Creation of Equitable Interests: Equitable interests can arise in a number of ways.
(1) Trust Interests: Trust rights may arise expressly or by implication.
Express: A trust is declared over land in signed writing (s53(1)(b) LPA 1925).
Implied: A trust may be declared over land as a result of specific actions, detailed below (s53(2) LPA 1925).
(2) Estate Contracts: Contracts used to bind parties in a conveyance must be in signed writing, incorporating all expressly agreed terms in one or exchanged documents (s2 LP(MP)A 1989).
(3) Other Equitable Interests: Other equitable interests in land must be made in signed writing, which will in most cases be a deed (s53(1) LPA 1925).
(4) Parol Lease Exception: Equitable leases not exceeding three years may be conveyed without deed, so long as they take effect immediately in possession, and are granted for best rent without the acquirer paying a premium (s54(2) LPA 1925; Fitzkriston LLP v Payani).
How are equitable interests disposed of?
Disposition of Equitable Interests: Any sale, gift or disposition of an equitable interest in land must be made in writing and signed by both parties to the transaction (s53(1)(c) LPA 1925).
