Topic 1

Question 1

Proprietary Rights

Answer 1

A proprietary right in land can be enforced by an action in rem, meaning that use or possession of the land can be recovered. The holder of the right does not have to settle for damages if they are deprived of their right. A proprietary right is also capable of being enforced against a third party.

Question 2

Personal Rights

Answer 2

A personal right in land can only be enforced by a personal action for damages if the right is breached. Use (or occupation) of the right cannot be recovered. Personal rights will bind only the original parties to the right, there can be no recourse against a third party.

Question 3

How do you tell whether a right exercised over land is a proprietary one or not?

Answer 3

There is a fixed list of the rights which are capable of being proprietary. This list is not written definitively anywhere, rather there are a number of statutory sections and case law judgments which together inform us of the rights that have proprietary status.

Therefore, some rights over the land will never be proprietary in nature; they will only operate as a personal permission.

Question 4

The rights that are on the ‘fixed list’ of rights that have proprietary status are:

Answer 4

• The freehold estate
• The leasehold estate
• An easement
• A mortgage
• A restrictive covenant
• An estate contract
• A beneficial interest in a trust of land

Question 5

Is a right proprietary or personal?

Answer 5

Just because a particular use of land has been recognised as having proprietary status (i.e. is on the fixed list) it does not mean that the actual right under consideration will have proprietary status.

Question 6

Nature of a right

Answer 6

For a right in question to have proprietary status it must also satisfy certain substantive (definitional) characteristics. These substantive characteristics differ depending upon the right in question.

Question 7

The creation of a right

Answer 7

Substantive characteristics alone may be enough to work out whether the right in question is proprietary although usually we will have to look further and examine the issue of formalities. Most proprietary rights in land are subject to strict requirements as to the formalities for their acquisition/creation. Compliance, or otherwise, with such formalities may ultimately determine whether the right is proprietary or not.

Question 8

The protection of a right (How do you find out if a piece of land is subject to a proprietary right):

Answer 8

An obvious characteristic of proprietary rights is their invisibility – you cannot see a mortgage or an easement or a lease when you look at a piece of land. To minimise this risk to a purchaser, while at the same time protecting the rights of those holding a proprietary right in the land, systems have been developed by which proprietary rights in land must be made apparent by registration if they are to bind a purchaser of subsequent rights in the same land.

Question 9

Land ownership

Answer 9

All the physical land in this country is owned by the Crown. At the time of the Norman Conquest, the ownership of all land in England became vested in the Crown.

When we say we own a piece of land, what we own is not the physical land itself, but a right to possess the land.

Question 10

Estate

Answer 10

A proprietary right of possession is called an estate in land.
There are two recognised legal estates: the freehold and the leasehold. The type of estate will determine the length of time that rights of use and possession can be enjoyed.

Question 11

The freehold estate

Answer 11

• The highest possible estate in land is the fee simple absolute in possession (LPA 1925, s 1(1)(a)), which is more commonly referred to as the freehold estate.
• It is a right of possession which lasts until the owner for the time being dies without heirs, meaning without any blood relatives and without having disposed of it by will.
• The word fee denotes that it is capable of being inherited.
• The word simple means that it can be inherited by any heir and includes distant relatives.
• The word absolute signifies that the estate is not liable to end prematurely, which means it is not determinable or subject to a condition, such as you passing an exam.
• In possession denotes that the fee simple owner has a current right to use and enjoyment of the property. Physical possession is not necessary here and includes receiving rent if the property is let to a tenant under a lease.
  For all practical purposes, the holder of the freehold in a piece of land is equivalent to the owner of any other property. It is this person we refer to as the landowner.
  Since it is a form of property, the owner of the freehold is free to sell it or give it away.
  Alternatively, the owner may grant away a lesser estate for a shorter period of possession than their own (a lease) to which their own estate will then be subject.

Question 12

The leasehold estate

Answer 12

• Where a freehold owner grants a lesser estate, which is of a certain duration, the estate granted is a term of years absolute (LPA 1925, s 1(1)(b) LPA) which is more commonly known as the leasehold estate or simply a lease.
• Leases are of huge social and economic importance.
• Leases are granted in both residential and commercial contexts.
• Leases can be short; weekly, monthly or yearly, or can be hundreds of years long.
• The leaseholder (whom we call the tenant) may grant a lease of a lesser duration out of their own leasehold, while still retaining the original lease. This is now subject to the ‘sub-lease’.
• This process may continue with sub-leases for shorter and shorter periods of possession being granted by the successive sub-lessees.
• The residue of the estate after the granting of a lease is known as the freehold reversion. If the grantor holds a leasehold estate, the residue is known as the leasehold reversion.
• This means that when the lease ends the right to physical possession of the land automatically reverts to the landlord.

Question 13

Hierarchy of rights of possession

Answer 13

• Any piece of land may be subject to a hierarchy of estates i.e. rights of possession.
• The same piece of land may simultaneously be subject to a freehold, a lease and a sub-lease etc with the holder of each right owning not the land itself but rather the right to possession of the land subject to the lesser rights they have granted for their particular ‘slice of time’.
• Each of these estate holders could be described as the owner of the particular estate in question.

Question 14

Commonhold

Answer 14

• Commonhold is a type of freehold. Introduced by the Commonhold and Leasehold Reform Act 2002, commonhold is not a new estate in the land, but one created out of a freehold registered estate.
• It is an alternative to a long lease, which is a declining asset. Another advantage is that there is no overall landlord. However, there is a freehold owner, and that is a company called a commonhold association. The owner of each flat is a member of the association (if you buy a commonhold flat, you will be part of the association). The commonhold association is responsible for maintaining the communal areas of the building.

Question 15

Interest

Answer 15

a proprietary right of limited use is called an interest in land. An interest in the land does not give a right to possess the land in the way an estate does, rather it gives the interest holder the right to do something on the land or restrict what can be done on the land.

Question 16

Incumbrances

Answer 16

interests in land are also sometimes referred to as incumbrances on an estate.

Question 17

What rights are interests?

Answer 17

• Given the powerful nature of proprietary rights, they are seen as a burden on the land. If a piece of land is subject to a proprietary right of way (an easement) if may adversely affect the value and saleability of the land in question.
• Parliament has therefore limited the number of rights that are capable of being proprietary.
• The number of interests is limited by LPA 1925, s 1.
• If a right has not been recognised by LPA 1925, s 1 as having proprietary status then it will only ever be personal in nature.

Question 18

Legal and Equitable Interests

Answer 18

• LPA 1925, s 1 draws a distinction between legal and equitable interests. This distinction becomes important in respect of enforcement and remedies available.
• The legal interests are: Mortgages, Easements granted for a term equivalent to a freehold or leasehold estate (forever or for a certain term), Rights of entry
• The equitable interests you will encounter are: Freehold covenants, Estate contracts, Interests in a trust of land, Easements granted for an uncertain term

Question 19

Mortgage

Answer 19

a mortgage is capable of being a legal interest: LPA 1925, s 1(2)(c). A mortgage can be defined as a bundle of rights granted over property in exchange for a loan of money. These rights include the right to possess and sell the land in the event of default in the mortgage repayments. It is the borrower that grants the mortgage, not the lender.

Question 20

Easement

Answer 20

an easement is a proprietary right to use land which belongs to somebody else. The use is more limited than an exclusive right to occupy or use. An easement must be granted for a term equivalent to one of the legal estates (forever, like the freehold, or for a certain period, like a lease) to be a legal easement: LPA 1925, s 1(2)(a).

Question 21

Right of entry

Answer 21

a right of entry is a legal interest in the land: LPA 1925, s 1(2)(e). A right of entry is either:
o a right for a landlord to re-enter leased premises and end the leasehold estate in the event of tenant default or some other specified event occurring; or
o a rentcharge owner’s right to hold the land if money owed is not paid.

A right of entry in a lease is also known as a ‘forfeiture clause’.

Question 22

Restrictive covenant

Answer 22

A covenant is a promise. Covenants between freehold owners generally arise when one person sells part of their land and wishes to ensure that the buyer does not do anything which could affect the amenity and value of the seller’s retained land. Restrictive covenants are negative in nature, they prevent a landowner from doing something on their land. A restrictive covenant is not a recognised legal interest in the land. It falls under LPA 1925, s 1 (3) as being an equitable interest and was recognised by the courts as being an interest in the land in 1840’s.

Question 23

Estate contract

Answer 23

The estate contract is a contractual right to a legal estate, whether freehold or leasehold. Equity will order specific performance of a contract to create or transfer a legal estate, because each piece of land is regarded as unique. This, together with the maxim that ‘equity sees that as done what ought to be done’, results in an equitable interest arising from the contract.

Question 24

Interests in a trust of land

Answer 24

A trust exists where one person (the trustee) holds property for the benefit of another (the beneficiary). When a trust exists, there is a split in the legal and equitable title (ownership). A piece of land may be placed in trust. The beneficiary(s), has an equitable interest in the land.
The trustees and beneficiaries can be the same or different people. Trustee(s) hold the legal title Beneficiary(s) hold the equitable title.

Question 25

The distinction between legal and equitable interests

Answer 25

• The distinction between legal and equitable interests is important for two main reasons in modern land law.
• First, remedies. A person who holds a legal interest, whose interest is infringed, will have a wide range of remedies available to him. At law, this will include damages, which the holder of the right would get as of right (automatically). There would be no discretion to consider the merits of the case. In addition, several equitable remedies may be available to him, although this will be subject to satisfying the usual equitable principles.
• In contrast a person who holds an equitable interest, whose interest is infringed, is not entitled to damages as of right. The remedies granted, which may include damages or other equitable remedies, are entirely at the discretion of the court.
• The second reason is enforcement of the interest against third parties.

Question 26

Transfer of a freehold estate can be achieved in a number of ways:

Answer 26

1. Sale
2. Will
3. Gift
4. Operation of law (automatic transfer in certain situations e.g. bankruptcy)

Question 27

Sale of a freehold

Answer 27

• The usual method of transfer of the freehold estate is by a sale.
• Sale consists of a three-stage process, though the first stage, exchange of contracts, is voluntary and not legally necessary to transfer the estate, though is common in practice.
• The second and third stages are necessary to transfer a freehold estate. Without them, the sale will not comply with the legal formalities required to transfer the land effectively.
• The three stages of sale are: Exchange of contracts, Completion of the deed (written legal doc), Registration
• Exchange of contracts: covered in property
• Completion of the Deed: this deed is known as a conveyance in unregistered land or a transfer in registered land. Completion usually takes place some weeks after exchange of contracts, but it can take place at the same time, which is called ‘simultaneous exchange/completion’ in practice. A legal estate must be transferred or created by deed: LPA 1925, s 52(1). The requirements of a valid deed are set out in LP(MP)A 1989, s 1:
  i. A deed must be clear on the face of the document that it is intended to be a deed.
  ii. The deed must be validly executed (where the grantor (i.e. the seller) is an individual, then the deed must be signed by the seller in the presence of a witness).
  iii. The deed must be delivered (an acknowledgement that a person entering into a deed intends to be formally bound by its provisions).

Question 28

Registration

Answer 28

• The final stage of transfer of a freehold estate is registration where you ‘tell’ the Land Registry that the buyer is the new owner of the land. The buyer does this by sending the completed deed to the Land Registry.
• In registered land the legal title does not transfer until registration has taken place (LRA 2002, s 27(1).) This means the buyer is not recognised as the legal owner of the estate until registration has taken place.
• In unregistered land the legal title is transferred upon completion of the deed. The new owner must then register the land on the land register for the first time (first registration) within two months of completion, otherwise the legal title will revert back to the seller (LRA 2002, ss 4 and 6.)

Question 29

Land Registry

Answer 29

a national non-ministerial department which keep a register recording who owns each piece of land in England and Wales.

Question 30

The three steps of conveyancing are:

Answer 30

1. Exchange of Contracts
2. Completion of the Deed
3. Registration

Question 31

Formalities - land contracts

Answer 31

• Contracts where the subject matter is land
• All three of the following requirements must be satisfied to have a valid land contract. This is as per the (LP(MP)A), s 2: The contract must be in writing, it must contain all the expressly agreed terms, it must be signed by both parties.
• This is in addition to the normal contract law requirements and relates to all contracts where the subject matter of the contract is land.

Question 32

LP(MP)A 1989, s 2 - land contracts

Answer 32

• The contract must be in writing
• It must contain all the expressly agreed terms – LP(MP)A 1989, s 2(2): the contractual terms may be incorporated into the contractual document either by being set out in the document or by referring to some other document (‘by reference’), which is very common in practice.
• For both commercial and residential sale transactions there are Law Society standard conditions of sale
• It must be signed by both parties – one document or two identical ones
• The standard conveyancing practice is to exchange contracts. Two copies of the contract are drawn up. One copy is signed by the seller and the other by the buyer. To create a binding contract the parties then exchange their copies.

Question 33

Can a land contract be varied?

Answer 33

• The case of McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38 held whenever a material term in a land contract is varied that variation must also comply with LP(MP)A 1989 s.2.

Question 34

Proprietary effect of the contract

Answer 34

• The effect of a binding land contract is to pass an equitable interest in the land to the buyer, called an estate contract.
• Walsh v Lonsdale (1882) makes clear that a contract to create or transfer a legal property right will create a proprietary right in equity if the remedy of specific performance is available ie the claimant must have clean hands.

Question 35

most usual land contracts

Answer 35

1. As part of the process of buying/selling land (conveyancing), the buyer and seller may choose to enter a sale contract to record the terms of the agreement and to commit themselves legally to the purchase/sale.
2. Prior to the grant of a lease, the landlord and tenant may choose to enter into a contract to commit themselves to enter into the lease in the future. This is common in practice where the premises are not ready for immediate occupation, but the parties want the certainty that a lease will be entered into. In practice this is called an ‘agreement for Lease’ or ‘contract for Lease’.
3. An Option Agreement is a type of land contract that gives another party a right, during the option period, to serve notice that they wish to buy the land. If notice is served during the option period, the seller must sell the land to the buyer. However, the buyer is not obliged to exercise the option.
4. A Right of pre-emption is a type of land contract that gives another party a right of first refusal in the event the land owner decides to sell their land. This means that the land owner cannot sell the land without first offering it to the party holding the right. There is no ability for the party who has the benefit of the right to require the land be sold to them.

Question 36

Remedies for breach of a land contract

Answer 36

Damages
- This is a common law remedy and therefore available as of right rather than at the court’s discretion. The usual measure of damages is the loss which the claimant has suffered as a result of the breach e.g. legal and surveyor’s fees, including the loss of the bargain.

Specific Performance
- This is a court order compelling the defaulting party to carry out positive contractual obligations.

Injunction
- Prohibitory injunction: this is a court order restraining somebody from doing something, including breaching a contract by selling the land to someone else.
- Both specific performance and injunctions are equitable remedies. This means they are not available ‘as a right’ (unlike common law damages) and are entirely at the discretion of the court. This means there is no automatic right a claimant will get the remedy they seek.

Equitable principles
- Means the court will have regard to the behaviour of both parties in determining whether to make an order or grant an injunction. If the buyer delays in requesting the remedy or itself has not behaved honourably then the court may well refuse to make an order of specific performance or grant an injunction.

Question 37

The unregistered land system has many disadvantages for a buyer, including:

Answer 37

• It is very difficult to discover third party interests, where documentation is held by the right-holder themselves rather than any centrally administered authority.
• Examining title deeds is necessary and reading very ancient documents might be very difficult or the deeds might be missing as a result of fire/loss. There might also not be a plan of the property, so it is difficult to know for certain the extent of the property.
• There is no state guarantee of accuracy or compensation for error (this does exist in the registered system.)
• As there are more documents to read and interpret the conveyancing process may be slower and incur more expensive legal fees for a purchaser. The process is also very repetitive each time the land is sold again.

Question 38

History of Land Registration

Answer 38

• The LRA 2002 governs the present system of registration.
• The system was introduced in England and Wales by the Land Registration Act 1925 (now repealed), which envisaged that land would gradually be registered, region by region.
• From 1926 onwards central government designated various areas as being areas of compulsory registration, so eventually all of England and Wales would be registered. It was not until 1990 that all of England and Wales became designated as an area subject to compulsory registration.
• Even now, you do not have to register an unregistered title – you only have to do this if there is a transaction (sale, mortgage, gift, assent (if you’ve inherited land), or event (disposition) which triggers compulsory registration.

Question 39

Advantages of the registered land system

Answer 39

• Each registered title has a title plan which evidences the full extent of the property and usually also provides information as to who is responsible for the property’s boundaries.
• Once a person is registered as the title owner that ownership is guaranteed by the State. Therefore, buyers are certain that the title to the land has been investigated and approved before registration. If it is incorrect then an innocent party who has suffered loss can make a claim for compensation against the Land Registry.
• Once a title is registered a copy of the registered title can be downloaded from the Land Registry’s website easily and quickly. This reduces the risk of fraud too.
• Once the title is registered all information is held centrally and can be viewed online. This speeds up the conveyancing process as a seller’s solicitor can deduce title and draft a contract for sale very quickly rather than have to wait for the original deeds and documents to be sent from the client (or the client’s lender)

Question 40

Compulsory Land Registration

Answer 40

• Each time that unregistered land is sold for the first time since 1 December 1990 it must be registered. This is known as first registration
• (Note: It has only been compulsory to register changes of ownership following death or gifts of land since 1 April 1998.)
• Under LRA 2002, s 4 (first registration) and LRA 2002, s 27 (transactions involving already registered land) there are a number of circumstances which trigger compulsory registration: “triggering events.”
• These triggering events apply to both unregistered and registered land. If the land is unregistered the event triggers a requirement to register the land for the first time. If the land is already registered, the event triggers a requirement to update the register.
• The LRA 2002, s 3 allows for voluntary registration of unregistered land, for example if the owner wants to obtain the advantages of the land registration system. The Land Registry offer reduced registration fees in these circumstances.

Question 41

The ‘triggering events’ under LRA 2002 are:

Answer 41

• Transfer of the freehold estate by sale, gift, or court order.
• Grant of a lease for a term of more than seven years.
• Assignment (transfer) of a lease of unregistered land with more than seven years to run.
• An assent, vesting assent or vesting deed which is a disposition of the freehold or a leasehold with more than seven years to run (this refers mainly to transfers on death.)
• The grant of a lease to take effect in possession more than three months after the date of the grant (i.e. future leases.)
• A first legal mortgage of the freehold or of a leasehold with more than seven years to run.

Question 42

Aim of land registration

Answer 42

the buyer would always know precisely what it was buying, and the holder of the interest would always know that, by recording it on the register, the interest would be enforceable against a new owner.

Question 43

Mirror Principle

Answer 43

• Put simply the register should reflect all matters that the property has the benefit of and all the matters that the property is subject to. The register should be a clear and comprehensive account of the ownership and rights that benefit and burden a piece of land, and a purchaser should only need to look at the register to understand who owns a property and what third party rights will bind the property.
• The transparent simplicity of the mirror principle for recording third party interests against an estate has never been fully realised due to the existence of overriding interests.
• Overriding interests have attracted criticism since the system of land registration was first established in 1925. They are, nevertheless, retained by the LRA 2002, although their number has been vastly reduced.

Question 44

Overriding interest

Answer 44

an interest that does not appear on the register but will still be binding on the owner of the legal estate and any buyer of it. Their full title under the LRA 2002 is ‘unregistered interests which override registered dispositions’.

Question 45

Curtain Principle

Answer 45

• The register records the ownership of the legal estate in the property, the legal title.
• If a property is held on trust, the purchasers need not be concerned the beneficial or equitable ownership of the land (‘what lies behind the curtain’), which is often far more complicated than the legal ownership. This information is kept off the title.
• This principle simplified land conveyancing, making the process of investigating ownership to a piece of land much simpler and quicker.

Question 46

Insurance Principle

Answer 46

• The accuracy of the register is guaranteed by the state. This is one of the advantages of registered land over unregistered land.
• If there is an error with the register, it will be corrected and anyone who has suffered any loss will be compensated (LRA 2002, schedule 8, para 1).
• You often see the compensation referred to as ‘state indemnity’.

Question 47

Registered title

Answer 47

• When a piece of land is registered for the first time, it is given a unique title number and the details of the land owner and rights that benefit/burden a piece of land are recorded.
• The title plan the Land Registry creates for each property ensures that there is an accurate plan of the property.
• First the Property register. This contains:
  o A description of the property by reference to a filed plan.
  o The nature of the estate ie whether it is freehold or leasehold.
  o The details of any proprietary rights that benefit the land. For example, if the property benefits from a right of way over another property – an easement – then the details of it would appear here.
• The Proprietorship Register contains:
  o Details of owner of the legal estate.
  o The class of title, such as title absolute, possessory title
  o Any restrictions on the owner(s) ability to deal with the land – such as a mortgage restriction preventing a sale without lender’s consent.

Question 48

The Proprietorship register: classes of title

Answer 48

Absolute Title: This is the best form of ownership and is really what you would want to see on the official copies if you were buying a property. Most properties are registered with this class of title. The land is only bound by interests that are registered on the title or overriding interests.
Qualified Title: An owner may be registered with qualified title if the Land Registry is of the opinion that the title has some defect which it will then specify on the register. It is very rare to see someone registered with qualified title in practice.
Good Leasehold Title: Good leasehold title will be granted where the Land Registry is satisfied as to the title of the leaseholder only and not the freeholder.
This could be the case where the freehold title is unregistered and where the applicant fails to submit evidence of the freehold title when applying to register his leasehold title.
Possessory Title: May be given by the Land Registry where the applicant is in possession of the property or is in receipt of rents and profits and there is no other class of title that can be given. Where there are no title deeds to prove ownership, or the deeds have been destroyed Possessory Title would be given.
It is usually given to those with a claim under ‘Adverse Possession’ or ‘Squatters Rights.’ Possessory title may mean that third party interests created before the date of first registration will bind the property even though these are not noted on the title.

Question 49

Keeping the register updated

Answer 49

• LRA 2002, s 27 provides a list of transactions involving already registered land which must be registered i.e. the Land Registry must be notified of the transaction so that the register can be updated accordingly.
• Failure to register means the transaction is not legally recognised (LRA 2002, s 27(1).)

Question 50

What is land?

Answer 50

Land is defined in plain English as: “…the part of the earth’s surface that is not covered by water”

Question 51

The significance of ‘what is land’

Answer 51

• There is a much higher degree of formality required to transfer land compared to other forms of property. A deed must be used to transfer land.
• A buyer of a piece of land will want to know what is included. A buyer of land gets everything that falls within the legal definition of land (LPA 1925, s 62).
• If there is a shed in the back garden, is this part of the land? What about the carpets?
• If a third party is digging under a piece of land or swinging a crane over the land, is this trespass? A landowner will want to know what action they can take (if any).
• If a mortgage lender initiates possession proceedings because a borrower stops making their payments due under the terms of the mortgage loan, the lender will want to know exactly what they can take possession of and then sell. A lender will have a mortgage over ‘the land’ and therefore a right to sell everything that counts as being part of land.

Question 52

Corporeal hereditaments

Answer 52

physical things attached to the land – called ‘fixtures’ in practice.

Question 53

Incorporeal hereditaments

Answer 53

the benefit of any proprietary rights that the land has but which have no physical substance.

Question 54

Airspace

Answer 54

• An owner’s rights in the airspace above his land are restricted to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it.
• In other words something on your neighbour’s land that overhangs yours is likely to be a trespass as they are, by definition, using space that you could utilise. Conversely, above that height, the owner has no greater rights than any other member of the public: Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479.
• The law makes a distinction between the upper airspace and the lower airspace

Question 55

The upper airspace

Answer 55

• There is no exact height from where the upper airspace begins
• The Civil Aviation Act 1982, s 76(1) grants immunity from trespass or nuisance for any innocent flight of aircraft.

Question 56

The lower airspace

Answer 56

• The lower airspace is to such height as is necessary for the reasonable enjoyment of the particular piece of land.
• If a structure overhangs your property so that it is in the ‘lower airspace’, that is a trespass irrespective of whether damage is caused to your property.

Question 57

The ground below

Answer 57

• This issue of who owns the ground beneath the surface of the earth came before the court in the case of Grigsby v Melville [1974] 1 WLR 80
• The Court of Appeal held that the cellar was owned by the claimant and based their reasoning partly on the fundamental principle that a conveyance of land ordinarily carries with it all that is beneath the surface.
• There are some exceptions to the principle that a landowner owns everything beneath the surface of its land:
• A landowner is not entitled to all minerals under its land. All mines of gold and silver belong to the Crown.
• If a landowner finds “treasure” (as defined under the Treasure Act 1996) then that also belongs to the Crown.
• Any coal under land belongs to the Coal Authority by virtue of the Coal Act 1938.
  The Infrastructure Act 2015, s43 effectively states there is no trespass at depths below 300 metres and therefore there is no need for the consent of the freehold owner to deep-level drilling.

Question 58

“cuius est solum eius est usque coelum et ad inferos”

Answer 58

this is an ancient Latin maxim. It means he who owns the land owns everything up to the heavens above and the depths below.

Question 59

Quic quid Plantatur Solo, Solo Cedit

Answer 59

• This ancient Latin maxim, upon which the modern law is based, means ‘whatever is attached to the land becomes part of the land’.
• This principle is encapsulated in modern land law in the LPA 1925’s definition of ‘land’ which includes “other corporeal hereditaments” ie things attached/fixed to the land, what we ‘fixtures’ in practice.

Question 60

The legal test for determining if an object is a fixture or chattel

Answer 60

1. The degree of annexation test - this is the first test to be applied: the more firmly the object is fixed to the land or building, the more likely it is to be classified as a fixture. Even if it is fairly easy to remove, its character is still prima facie that of a fixture. If, on the other hand, it rests on the land by its own weight, it is generally considered to be a chattel.
2. The purpose of annexation test - the second test considers why the object is attached to the land/building. It asks whether the annexation was for the more convenient use or enjoyment of the chattel as a chattel, or to enhance the land or building in some way. This test takes priority over the degree of annexation test.
   The ‘purpose test’ prevails over the ‘degree test’ where there is a discrepancy between them; but what is the point of having two tests if whenever they produce differing results you choose one over the other?
   - The degree of annexation test raises a presumption, that the thing in question is or is not a fixture.
   - This presumption can then be rebutted by objectively looking at the purpose.

Question 61

how does the legal test work in practice (chattels)

Answer 61

• Under LPA 1925, s 62, a conveyance of land (ie a transfer) automatically includes all fixtures in the property, unless the items are specifically excluded from the sale in the contract under the LPA 1925, s 62(4).
• If the contract is silent and does not specifically exclude any items from the sale, the seller may not remove a fixture after they have contracted to sell the property to another.
• To avoid a dispute about whether an item is a fixture or chattel, it is common practice for the buyer and seller to agree which items are to pass on the sale by completing a Law Society Fixtures and contents form (Form TA10) which forms part of the contract.