What Am I Buying - The Land Itself Flashcards
There are two common law presumptions that are used to define the extent of the land. What are they?
“He who owns the land owns everything extending to the heavens and depths of the earth”
and
“whatever is attached to the land becomes part of it”.
Where can the statutory definition of the definition of land be found?
s205(1)(ix) Law of Property Act 1925
The statutory definition defines land as including “land of any tenure, any mines to minerals whether or not held apart from the surface, building or part of buildings, whether the division is a horizontal, vertical or made it any other way…and other corporeal hereditaments…and any other incorporeal hereditaments.
Define the following:
Tenure
Corporeal hereditaments
Incorporeal hereditaments
Tenure = refers to the way the land is held – freehold or leasehold
Corporeal hereditaments = means physical or tangible objects
Incorporeal hereditaments = Various intangible rights associated with the land – the benefit of a right-of-way, or the benefit of restrictive covenant over the land of another
Explain what a fixture and fitting is.
A fixture is anything that is attached to the land. When the land is sold, leased or mortgaged, fixtures will pass with the land as part of the transaction unless the seller makes it clear that they’re not intended to pass.
Items that are not attached to land are called fittings and are sometimes referred to as chattels. Fittings will not pass automatically with the land unless otherwise agreed, the seller can remover fittings
Why should a fittings and contents form be completed
In order to avoid disputes over the unexpected removal of items
If the fittings and contents form is not completed, how can the courts distinguish between fixtures and fittings? Give details for tests and give case law to support your answer
There are three tests at the courts can use to distinguish between fixtures and fittings.
The first test is the degree of attachment. This test looks at the object and if it’s attached other than by its own weight. If it is it is, it’s likely to be a fixture. This test was used in Holland v Hodgson [1872].
The second test is the purpose of the attachment and if the object was attached for its own benefit, if it was, the object is likely to remain a fitting. The case of D’Eyncourt v Gregory [1866] used this test to determine the statues of lions in the garden were fixtures as they were there to increase the owners enjoyment of the land.
The third test is permanence of the attachment and this test looks at how long the object is likely to be attached to the land. The case which supports this test is Botham v TSB Bank plc [1996].
What are the three limitations on the extent of the land?
Airspace, underground and surface.
In regards to airspace, a landowner cannot object to the passage of aircraft during normal flights over land. Give the statute law and case law.
s76 Civil Aviation Act 1982
Bernstein v Skyviews Ltd [1978]
Tunnelling under a neighbour’s property would amount to trespass. Give details of what a land owner is not entitled to under their land. Give details of the statute law
A land owner is not entitled to all minerals under their land. All mines of gold and silver belong to the crown, as does treasure by virtue of the treasure act 1996.
Oil extracted from the ground and the petroleum act 1998 belongs to the crown.
Call belongs to the coal authority by virtue of the coal act 1938.
Minerals found on the surface of the land are part of it and if the seller wishes to reserve the mineral rights they must so expressly. Give an example of caselaw.
Lynn shellfish limited and others v loose and another [2016].
Name the remedies for trespass.
Damages, injunction and self-help
