THE NATURE OF LAND

Question 1

Real Property vs. Personal Property

Answer 1

1. it is important to appreciate the difference between ‘real property’ (that is, land, or an interest in land) and ‘personal property’ (for example, a car or a refrigerator, which historically were referred to as ‘chattels’).
2. **It is also important to recognise when property becomes so attached to land that it becomes part of the land—that is, a fixture—as opposed to personal property which is not so affixed—that is, a fitting. **The distinction is important because the remedies available differ between real property and personal property

Question 2

2

Classes of Personal Property

Answer 2

a. Choses in Possession
Choses in possession are** physical, movable things,** such as a car.
b. Choses in Action
Choses in action are rights (other than those relating to land) which do not have a physical existence, such as debts and patents.

Question 3

WHAT IS LAND?

Answer 3

‘Land’ is defined in the Law of Property Act 1925 (‘LPA 1925’).
The term ‘land’ includes:
* ‘Corporeal hereditaments’ which are tangibles, including:
* The surface of the land;
* Buildings and parts of buildings;
* Mines and minerals;
* Trees and plants;
* The air above the surface of land;
* The ground below the surface of land; and
* Fixtures.
* ‘Incorporeal hereditaments’ which are intangibles and include:
* Rights;
* Easements; and
* Rents.

All of the above pass with the land on sale from a seller to a buyer.

Question 4

Limitation on Airspace

Answer 4

In theory, land extends ‘to the heavens’ and to the centre of the earth. This means that infringing on another’s airspace (for example, by an overhanging gutter) is a trespass to land; similarly, tunnelling beneath someone’s land is a trespass.
However, in practice, rights are limited. The landowner is allowed rights in the airspace** only to such height as is necessary for the ordinary use and enjoyment **of the land and
the structures on it.

Question 5

3

Limitations on Things in the Ground

Answer 5

1. ‘To the depths of the earth’ has also been limited to the extent that a freehold owner is not entitled to all minerals under **his land.
2. The ownership of coal, oil, and natural gas is laid down by statute.
3. Moreover, the Crown is entitled to any gold, silver, and treasure (for example, buried coins) found under land.

Question 6

Limitation on Wild Animals

Answer 6

A landowner does not own wild animals on their land, but they do have the right to hunt them

Question 7

Limitation on Running Water

Answer 7

A landowner can draw water from a source running through
their land only if they obtain the appropriate licence to do so

Question 8

Limitation on Development and Building

Answer 8

As a general rule, no development of land can take place without planning permission.

Question 9

4

FIXTURES AND FITTINGS

Answer 9

1. Fixtures are regarded as** part of the land** and pass automatically on sale of the land without specific mention in the contract or transfer.
2. The ‘transfer’ is a standard form document used in conveyancing in England and Wales to transfer real property from its legal owner to another party.
3. Fittings (formerly ‘chattels’) are **not part of the land **and do not pass on sale unless they are specifically mentioned in the contract
4. The seller of a property will complete a Fittings and Contents Form that lists all of the items at the property that will be included in the sale price. This form is attached to the contract of sale.

Question 10

The Tests
The courts have applied two tests to decide whether an object has become a fixture (rather than remained a fitting).

Answer 10

(1) the degree of annexation; and (2) the purpose
of annexation.

Question 11

Degree of Annexation

Answer 11

The degree of annexation test provides that the greater the degree of attachment to the land, the more likely the item is to be a fixture. Thus, things nailed, screwed, or bolted to walls often are found to be fixtures, especially if removal of **the thing will cause damage to the remaining structure.

Question 12

2

Purpose of Annexation

Answer 12

1. The purpose of annexation test looks to whether the item was brought onto the land with an intent to make** a permanent improvement to the land** or only a temporary one. If the item was brought to make a permanent improvement, it is a fixture regardless of the degree of annexation.
2. If there is a confict in the degree of annexation and the purpose of annex-ation, the purpose test will** prevail.**