WHAT IS PROPERTY Flashcards
What is the legal concept of land?
Who owns the land, theirs it is from the centre of the earth to the heaven above.
What is property?
Property implies:
- The right to use or enjoy,
- The right to exclude others, and
- The right to alienate.
Doesn’t have to be all. Millirrpum v Nabalco
Does a person own all the air space up until the heavens?
No, it is restricted to such a height that is necessary for the ordinary use and enjoyment of the land and the structures upon it.
Above that heigh, the person does not haev any greater rights in the airpsace than any other member of the public.
This test comes from: Bernstein v Skyviews
What is Bernstein v Skyviews about?
Bernstein owned a country estate.
Sky views took photos of the estate from above and sold them. He claimed it was trespass into airspace.
Courts held: no trespass, the rights in the airspace were restricted to such a height AS NECESSARY FOR THE ORDINARY USE AND ENJOYMENT OF THE LAND AND THE STRUCTURES UPON IT.
Davies v Bennison
D stood in his yard and fired a shot at a cat on the other property.
Held: It was trespass because bullet was at a low level.
In this case, damages were granted instead of an injunction because the cat had died and there is no proof of any continuing act of the kind.
Kelsen v Imperial Tobacco
P was a retail tobacconist and they lease the tobacco shop.
The premises next door extends past the roof of P’s premise and has a signboard off the side of the building that intrudes by 10 cm over the roof of P’s premises.
D were rival company.
P wants sign removed for commercial purposes.
Court held: it was trespass and ordered mandatory injunction.
Where does the test also apply?
Where there are cranes swinging over another’s property.
What cases are involved with the jib of the crane swinging over property?
- Wollerton v Richard
- Graham v KD Morris
- LJP Investments
Wollerton v Richard
The jib kept swinging past during the night. Court held it was trespass and ordered an injunction.
However, the suspended the injunction to allow construction to proceed.
This was because owner of the house had unreasonably refused an offer of money in exchange for the trespass.
Courts held: it would be inconvenient to stop construction.
Graham v KD Morris
Authority that a temporary intrusion into airspace constitutes trespass
How do the courts now deal with the operation of cranes?
s180 PLA
What is the operation of s180 PLA?
This section allows courts, if they thin it is reasonable, to award damages and allow the cranes to operate. This is under (1)
What is the relevance of Lang Parade v Peluso?
A case in which s180 PLA was succesful.
Parties were discussing whether the crane should be used.
Eventually the adjoining land owner did not want crane to operate but the building had started.
Courts held: It was trespass, but they ordered damages rather than an injunction.
What are landowner’s rights under the land?
The owner of the land has the right to enjoy the soil, as part of the reasonable use and enjoyment of the land, subject to the adjoining owner’s rights of lateral support. This is under s179 PLA.
What sort of minerals can the person own?
s8 of the Mineral Resources Act 1989 vests ownership of minerals found, in the Crown
They can grant mining leases under s29, under which the person would get ownership of the minerals mined.
