What is Land? Flashcards
Land definition
“Land” includes physical land, buildings, fixtures (corporeal hereditaments) and rights over land (incorporeal hereditaments) (s205(1)(ix) LPA 1925
Land includes air above and ground below, subject to some exceptions
A) Grigsby v Melville - neighbour’s cellar ran below Grigsby’s house. Grigsby was granted an injunction to prevent the defendant from trespassing by using the cellar.
B) Bernstein v Skyviews - land only extends to the lower airspace (part necessary for landowner’s ordinary use and enjoyment of land and structures upon it); plane photographing claimant’s estate was not trespassing.
C) Kelsen v Imperial Tobacco - an advertising sign projected into the claimant’s airspace by a few inches; claimant was granted an injunction to remove it.
D) Lemmon v Webb - owner is entitled, without notice, to lop off intruding branches, but must do so from his own land and return them.
E) Ellis v Loftus Iron - no matter how minor, all intrusions onto land/airspace are trespass, including a horse biting a mare through a fence.
Things found on the land
A) when an object is found on the land, the first step should always be to check if “true” owner can be found
- true owner will have better title than any later finder - property is not abandoned merely because it is forgotten about (Moffat v Kazana)
- however, if true owner cannot be found, consider points below
B) if object is defined as “treasure” under s1 Treasure Act 1996 then it belongs to the Crown
C) if object is not treasure trove but is attached to land or is under surface, it is a part of land and can be claimed by landowner (Waverly BC v Fletcher)
D) where original owner cannot be traced, property is not treasure trove and is unattached to the land, as a general rule it can be claimed by the finder, unless there is an employer/employee relationship or prior to the item being found, the landowner has manifested an intention to exercise control over things found on his land (Parker v BA Board)
- In Parker, Donaldson LJ contrasted a bank vault with a public park
E) private occupiers generally own things found on their land if the original owner cannot be found, as they normally manifest the necessary intention by controlling access to their land.
Fixtures and chattels
A) anything attached to the land is part of land - a fixture VS chattels are goods and other things that are not fixtures or otherwise part of the land
B) fixtures can be transferred by conveyance, whereas chattels only need to be delivered to another to transfer ownership
- anything that is a fixture on date of sale or mortgage is part of sold/mortgaged property so cannot be removed without express permission.
C) two tests for determining if something is a fixture (Holland v Hodgson)
1) Degree of Annexation Test
- creates presumption that if something is fixed/attached/bolted to building, it is a fixture (i.e. spinning looms bolted to floor were fixtures in Holland)
- if it is moveable or resting on its own weight then it is a chattel (Culling v Tufnell)
2) Purpose of annexation test
- asks: was the chattel put there to make use of the chattel more convenient, or was it put there to improve property?
- presumption created by degree test can be rebutted by purpose test if there is a discrepancy between them (Hamp v Bygrave)
- e.g. a wall hanging attached to wall is presumed a fixture under degree test, but this is overruled by purpose test, which holds that it is a chattel because it is put there so that it can be looked at and enjoyed (Leigh v Taylor)
- Botham v TSB Bank explains bathroom and kitchen fittings are all fixtures, but curtains, blinds, fitted carpets, and white goods are all chattels as they can be removed without damage to property
