WS1 - Nature of Land Flashcards
(a) Introduction: What type of property are property rights?
All property rights relating to land are real property, except leases.
They are also known as Proprietory rights and these can be enforced in rem which means use or possession can be recovered, holder of right does not have to settle for damages.
(a) Introduction: What is Personal Property?
Personal property is every other type such as cars, books, televisions, etc.
(a) Introduction: What is the statutory definition of Land?
Land includes land of any tenure, and mines and minerals, whether or not held apart
from the surface, buildings or parts of buildings (whether the division is horizontal or
vertical or made in any other way) and other corporeal hereditaments; also a manor,
advowson, and a rent and other incorporeal hereditaments and an easement, right,
privilege, or benefit in, over or derived from land…
(a) Introduction: Breaking down the definition - What is position regarding upper airspace?
There is no exact height in which upper airspace begins, however, Bernstein v Skyviews sets out Defendant did not comit trespass when flying many hundreds of feet above the ground and did not itnerfer with any use of owners land.
(a) Introduction: Breaking down the definition - What is position regarding lower airspace?
If it is considered lower airspace and a strcuture overhangs your property, then this would be considered a trespass, irrespective if it causes damage to your property or not.
(a) Introduction: Breaking down the definition - What is the position regarding ground below?
General principle was landowner owns everythign beneath the surface as seen in Grisby v Melville in which there were cellar underneath claimant house but neighbour had the acess and court determined it was neighbours house as it was below.
Exaception include mines of gold and silver belong to crown as does any treasure.
(b) Fixtures and Chattles: What is the distinction made within the definition?
Buildings and parts of are included in definition of land, but there is a distinction between fixtures and chattles in which fixtures are included but chattels retain their characteristcs as personal property.
(b) Fixtures and Chattles: What does this mean on sale of land?
This means that any fixtures must be passed to the buyer, unless made provision in contract and seller entailed to retain and remove any chattels.
(b) Fixtures and Chattles: What is the two stage test?
When considering if it is a fixture or chattel, consider:
(a) Degree of Annexation
(b) Purpose of Annexation
(b) Fixtures and Chattles: What does degree of annexation consider?
How firmly the object is fixed to the land which raises a presumption it is a fixture, which can then be rebut:
* It will consider how it is attached and the more fimly it is fixed then more liekly to be classified as a fixture.
* If it cannot be remvoed without significant damage, more likely fixture.
* If, however, it just rests on the land such as a statute, may be chattel.
(b) Fixtures and Chattles: What does purpose of annexation consider?
This is the key test and takes priority over first part and considers:
* If it was attached to enhance or create permanent improvement, then fixture.
* If it was attached for better enjoyment of the object, it retains its characterstic of a chattel.
(b) Fixtures and Chattles: What are some examples of application?
- Ornamental items such as pictures, usually chattel.
- Free standing cooker wil be a chattel.
- Cooker with built in oven and hob will be fixture as difficult to remove.
- Kitchen units are fixtures.
- Appliances will be chattels.
- Carpets/curtains are likely chattels as with light fittings only attached by screws.
- Bathroom fittings such as bath fixture as without, it would not function as bathroom.
(b) Fixtures and Chattles: What is the position in respect of architectural design?
- If chattel incorporated into architectual design of building such as fixed into panelled walls, marble vases have been held to be fixtures despite ease of removal due to architecual design.
- Chattel could also become part of land over time such as mobile home, while it can be removed, it remains however if house built in a way that it cannot be removed except destroyed, then it will be fixture.
(c) Legal and Equitable Rights in Land: How can these property rights in land be divided?
They can be divided into two categories:
(a) Estates
(b) Interests
(c) Legal and Equitable Rights in Land: What will these rights be?
Every property right weather estate or an interest will be either legal or equitable.
Only certain rights can ever be legal, but all are capable of being equitable.
(c) Legal and Equitable Rights in Land: When will a right be legal?
A right will be legal if it appears in S1(1) or S1(2) of LPA 1925 and meets the necessary formlaties.
Anything outside this list can only be equitable.
(c) Legal and Equitable Rights in Land - 1) Estates in Land: What is an estate?
An estate is a proprietory right of possesion in which holding on the estate gives right to possess, enjoy and use.
(c) Legal and Equitable Rights in Land - 1) Estates in Land: What are the two types of estates capable of being legal?
(a) The estate in fee simple absolute in possesion (freehold)
(b) The term of years absolute (leasehold)
Break each part down
(c) Legal and Equitable Rights in Land - 1) Estates in Land:What does estate in fee simply absolute in possession mean?
Freehold -
Fee - Means the estate can be inherited
Simple - Means that it can pass to any class of heir and as unlikely person die without an heir, then estate capable of lasting forever.
Absolute - The estate is not determinable or conditional on any event. (e.g on passing an exam)
In possession - Means right to immediate right to possession rather than entitelement to at some point in the future.
