The Extent of Ownership Flashcards
What is included in land?
- We have already seen that things attached to the land may be considered part of the land.
This common law position is affirmed by Section 71 of the Land and Conveyancing Law Reform Act 2009 (The Reform Act 2009) which sets out that any conveyance of land includes buildings, cellars, drains, sewers, fixtures, fences, lights, hedges, water, gardens, outhouses, passages, as well as other features that form part of the property. - Conveyance: any living (inter vivos) transfer of an interest in respect of land.
What is the definition of land?
- However, the definition of land contemplates various ways in which land may be divided:
- “land” includes:
a. any estate or interest in or over land, whether corporeal [tangible land interest] or incorporeal [some kind of entitlement or right in respect of land],
b. mines, minerals and other substances in the substratum below the surface, whether or not owned in horizontal, vertical or other layers apart from the surface of the land
c. land covered by water
d. buildings or structures of any kind on land and any part of them, whether the division is made horizontally, vertically or in any other way,
e. the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace, whether the division is made horizontally, vertically or in any other way,
f. any part of land
What is meant by above and below land?
- The owner of the land will to some extent have ownership below and above the land unless the property has been legally divided in some way (e.g., if I own an apartment, I do not own the apartment below or above).
- Cujus est solum, ejus est usque ad coelum et usque ad inferos (ownership is up to the heavens and down to hell)
- But this is an exaggeration!
Below the Land: What happened in Grigsby v Melville 1973?
- Owner of two semi-detached houses adjoined to each other sold one and attempted to keep the basement underneath.
- The only access to the basement was through the house he had kept for himself, but the basement was underneath the sold house.
Held:
“A purchaser does not expect to find the vendor continuing to live mole-like beneath his drawing-room floor. I would expect the conveyance of a house to include all that lies beneath its roof. I think that it is how conveyance should be interpreted unless there is a reason for construing it otherwise [in other words the vendor would have to be up front if he wished to keep the basement and include reference to it in the conveyancing documents/contract].
Natural Resources: The State:
What does Article 10 of the Irish Constitution say?
- All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution…. belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.
- All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into operation of this Constitution belong to the State to the same extent as they then belonged to Saorstát Éireann. [The land being referred to here is that which was acquired by the Land Commission and then resold on to individuals under various schemes. The terms of these transfers would have specified that the State retained ownership of the minerals. This is apparently the case re approx. 60% of minerals in Ireland]
What is the Minerals Development Act 1979?
Section 12:
- The exclusive right to work minerals is vested in the Minister.
- This is interpreted to mean that the State has a right over all minerals even those in privately owned land. But this has never been legally challenged.
- This means that anyone who wishes to mine for minerals must obtain a licence from the relevant minister.
- However, there is an exception for parties who were already working mines at 15/12/78.
Minerals and Land
- If part of the land (the title deeds will set this out) = then they belong to the owner of the land but if the owner wishes to mine for the minerals they will still have to obtain a licence from the minister (unless the mine was already being worked before 15/12/78).
- If not part of the land (any land that passed through the Land Commission) = the State owns the minerals
Petroleum and Other Minerals Development Act 1960
Section 4:
- All State petroleum vests in the Minister and his successors.
Section 5:
- All petroleum which is not State owned shall vest in the Minister and his successors, but compensation is payable.
Section 15:
- Gives the holder of a petroleum lease the right to enter onto the relevant land to mine for petroleum. This right is also given to the relevant Minister.
Section 16:
- Compensation must be provided for any damage to the land.
What are the Facts of the UK case:
Star Energy Weald v Bocardo 2010?
- Star Energy obtained a licence from the UK State to remove oil from a particular area of land.
- The UK State, like the Irish State has certain entitlements to minerals and petroleum found in the ground and therefore had the power to grant drilling licences to companies to carry out this process.
- However, in this instance the landowner was unaware that they were drilling underneath as Star Energy could drill diagonally from the neighbouring land to extract the oil under his land.
- The drilling took place at 900-2,900 feet below Bocardo’s land.
- He argued that a trespass had taken place as he owned the land “up to the heavens and down to hell”.
What did Lord Hope state in Bocardo’s case?
In considering the question of how far below the surface Bocardo’s land extended, Lord Hope stated:
“There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the wells that are at issue in this case, extending from about 800 feet to 2,800 feet below the surface, are far from being so deep as to reach the point of absurdity. Indeed, the fact that the strata can be worked upon at those depths’ points to the opposite conclusion.” [para 27]
He therefore held that Star Energy Weald had committed trespass on Bocardo’s land.
The UK after Bocardo:
The Infrastructure Act 2015
Section 43(1):
“A person has the right to use deep-level land in any way for the purposes of exploiting petroleum or deep geothermal energy….
(4) Deep-level land is any land at a depth of at least 300 metres below surface level.”
The UK Infrastructure Act 2015 therefore removed the necessity of providing compensation to landowners if the petroleum/geothermal energy is below a certain depth.
Irish Law: What does The Roads (Amendment) Act 1998 set out?
Soil below land may be acquired to make a tunnel.
Irish Law: What does the Planning & Development (Strategic Infrastructure) Act 2006 set out?
this act, amending the Acquisition of Land (Assessment of Compensation) Act 1919) sets out that land situated 10 metres+ below the surface is of no value unless it can be established otherwise (thereby limiting how much compensation the State would have to pay to acquire land).
What do the Irish Provisions suggest?
These provisions might suggest that Irish law might limit the interest a landowner may have below the ground at a much shorter distance than the UK in Bocardo and even in the UK Infrastructure Act 2015.
Above the Land:
What are the facts of Lord Bernstein of Leigh v Skyviews & General Ltd 1978
- Skyviews flew over Bernstein’s land to take photographs and then tried to sell them to Bernstein.
- He sued for trespass claiming that the airspace they had flew in over his land belonged to him.
