Law of Land and Properties Flashcards
What is land?
1.Subject to the restriction use of land, a landowner
will , in addition to owning the “crust” or “surface” of
the land(i.e. soil, ground and earth), also own the
airspace above the land and the earth below.
2.It also includes physical things attached to it such as
structures, buildings, fixtures and things growing
naturally on the land
What is the Doctorine of Tenure?
werh
What two states exist by
Freehold
Leasehold
What are the categories of holding land?
dunno
What is freehold
If you own the freehold, it means that you own the building and the land it stands on outright,
What is leasehold
Leasehold means that you just have a lease from the freeholder (sometimes called the landlord) to use the home for a number of years.
What is a freehold estate in commonhold land?
Means commonhold
A form of landholding appropriate to those whose properties are necessarily interdepedent.
What is commmon land?
Common land is owned, eg by a local council, privately or by the National Trust.
Some common land has different rights, so you may be able to use it for other activities, eg horse-riding.
What is airspace?
The owner of land also owns the airspace above that land – but he or she does not own ‘up to the very heavens
It is clear, however, that lower regions of airspace do belong to the landowner. Cases have been brought in respect of overhanging cranes
Give a case of airspace
Bernstein v Skyviews (1978)
• Lord Bernstein, the owner of a large country estate, brought an action in trespass against a company for flying over, and taking photographs of, his land
• The case turned on whether the airspace formed part of the claimant’s land
• Griffiths J held that the rights of the owner of land in the airspace above it extend ‘to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it’. Above that height, the landowner has no more rights than the general public
• Aircraft flying at a normal height do not trespass upon land, therefore Lord Bernstein lost the case
What are covenants
Covenants (promises)- provisions in the lease regulating behaviour of both parties
What are the common covenants found in leases?
1.To pay rent.
2. To repair (where it is reasonable to do so).
3.To permit the landlord entry to inspect or repair. (implied by statute)
4. To insure.
5. Not to alter the structure.
6. To use the premises only for a specific purpose.
7. Not to deny the Landlord’s title.
8. Not to assign or sublet
Lessor:
9.not to interfere with the lessee’s “quiet enjoyment” of the land,
10. not to “derogate from his grant” (not prevent lessee to use it for the purpose
it was let for),
11. fitness for human habitation
12. To repair
What would you usually find in lease?
weh
Land terms for covenants
weh
Which act gives the definition of land?
Law of Property Act 1925, s205(1)(ix)
What is the definition of land in the Law of Property Act 1925, s2051 (1)(ix)
Land” includes 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;
What is the definition of Doctrine of Tenure and explain it
- Doctrine of Tenure I only the Crown can “own” land, individual subjects of the Crown merely “hold” land from the Crown
- This holding of the land is categorised depending of the length of time for which it will last – doctrine of estates
Which act offers the definition of Doctrine of Tenure ?
Law of Property Act 1925 s1
What does land of any tenure mean?
Tenure falls into two categories
freehold
leasehold
Land tenure is the term commonly used to describe the different interests in land
Example:who owns the land, who has the right to occupy the land and for how long.
What are the two states of land of any tenure?
Commonhold
Leasehold
What is freehold?
- Freehold land is owned effectively ‘forever’,
- Most extensive right over land
- Can be sold, given away, leased and inherited by will
- Owner has an exclusive right to remain on the land
- Owner may have a mortgage, and right of way crossing the back garden
- Can only be one freehold
What is leasehold?
1.Leasehold land is owned by a tenant for a
fixed period, which may be short or long,
but is not ‘forever’
2.Can be more than one leasehold
What is Commonhold?
- Commonhold and Leasehold Reform Act 2002
- Freehold estate in commonhold land
- Designed for flats and commercial developments
- Made up of “commonhold units” (minimum 2) and the” common parts”
- Unit holders must form a company limited by guarantee – Commonhold association
- Each unit owner owns the freehold in his or her unit whilst the commonhold association will own the freehold in the common parts
Can people own different stata of land? Give an example
1.Different people can own different strata (or levels) of land
John owns a house that is built on land above a coal mine. He owns the surface of the land (and the house built on it),
But the land beneath the surface — that with the coal in it — may be owned by the British Mining Company
Explain the Woolerton and Wilson Ltd v Richard Costain Ltd (1970) case
Woolerton and Wilson Ltd v Richard Costain Ltd (1970)
- The defendants were Building Contractors. Their crane jib overhung the claimant’s land at a height of 50 ft (15 m) above ground level
- The defendant admitted trespass to the claimant’s airspace, but offered compensation for this. The claimant would not accept the compensation, but asked for an interim injunction preventing the trespass
- Stamp J said: ‘In principle there ought to be an injunction, but on the particular facts of this case, not until the defendants had a chance of finishing the job.’
Explain the John Trenberth v National Westminster Bank (1979) case
- In this case, the defendant needed to repair his
building, because it was unsafe - The claimant refused to allow scaffolding to be
erected on his land, but the defendant proceeded
anyway - The claimant was granted an injunction to prevent
this. Woolerton and Wilson Ltd v Richard Costain
Ltd was not followed and the correctness of that
decision was doubted - It is also clear from other cases that the
landowner does not have to prove that the
trespassing object has affected his use of the
land
Analyse the John Trenberth v National Westminster Bank case
weh
Analyse the Woolerton and Wilson Ltd v Richard Costain Ltd (1970) case
weh
What is an over-sailing licence?
weh
What is included in the over-sailing licence?
weh
Give an example of a case relating to an over-sailing licence
Laiquat v Majid (2005)
• In this fairly recent case, there was an
extractor fan at about 4.5 m above ground
level, which protruded 750mm into the
claimant’s garden
• Silber J, relying on older cases such as
Kelsen v Imperial Tobacco Co. Ltd (1957)
held that it was a trespass into the
claimant’s airspace
• It was well within the height which the
older authorities considered to be trespass
and it did not matter that the fan had not
actually interfered with the claimant’s
normal use of his garden
• It is clear, then, that lower regions of airspace, to the height necessary
for ordinary use of the land, form part of the land. Any objects intruding
on that airspace from next door are a trespass and will entitle the
landowner to either an injunction or damages, even if they do not, in
fact, affect the ordinary use of the land
What is commonhold?
Commonhold is a new type of property/land ownership introduced in 2002 as an alternative to the long leasehold system.
Designed for flats and commercial developments
Commonhold is an attempt to bring flat ownership into the 21st century
What is the act regarding to commonhold?
Commonhold and Leasehold Reform Act 2002
What are commonhold units?
How can you get a unit?
how many can you have?
1) A commonhold units are seperating properties within the building
2) •Unit holders must form a company limited by guarantee – Commonhold association.
•Each unit owner owns the freehold in his or her unit whilst the commonhold association will own the freehold in the common part
3)Must have a minimum of two units
What are commonhold parts?
Commonhold parts are the services within the building such as elevators.
the commonhold association own the freehold in the common parts
Explain the Woolerton and Wilson Ltd v Richard Costain and what does it regard?
Woolerton and Wilson Ltd v Richard Costain Ltd (1970)
1. The defendants were Building Contractors. Their crane jib overhung the claimant’s land at a height of 50 ft (15 m) above ground level
- The defendant admitted trespass to the claimant’s airspace, but offered compensation for this. The claimant would not accept the compensation,
but asked for an interim injunction preventing the trespass - Stamp J said: ‘In principle there ought to be an injunction, but on the particular facts of this case, not until the defendants had a chance of finishing the job.’
What is included in an over-sailing licence?
Permission to over-sail the land, usually by reference to plans showing the agreed location of the crane and anticipated turning circle of the swing of the jib.
Limit on duration to the carrying out of the particular development, probably with an element of contingency for delays
An indemnity from the developer and/or the contractor for any damage to property or personal injury or death
arising from the over-sailing, backed up with an appropriate level of public liability insurance
Reference to a method statement either already in existence or to be put in place dealing with construction, operation and dismantling of the crane
Reference to compliance with all relevant laws, including but not limited to those relating to health and safety
Provision for termination of the licence in the event of material breach of its terms or insolvency of the developer and/or contractor
Fees - Adjoining owners may seek a fee to
grant the over-sailing rights a developer and
its contractor, in addition to payment of
the adjoining owner’s costs of putting the
licence in place and any other associated
fee
Explain the Laiquat v Majid (2005)
- In this fairly recent case, there was an extractor fan at about 4.5 m above ground level, which protruded 750mm into the claimant’s garden
- Silber J, relying on older cases such as Kelsen v Imperial Tobacco Co. Ltd (1957) held that it was a trespass into the claimant’s airspace
- It was well within the height which the older authorities considered to be trespass and it did not matter that the fan had not actually interfered with the claimant’s normal use of his garden
- It is clear, then, that lower regions of airspace, to the height necessary for ordinary use of the land, form part of the land. Any objects intruding on that airspace from next door are a trespass and will entitle the
landowner to either an injunction or damages, even if they do not, in fact, affect the ordinary use of the land
