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LAND LAW LECTURE/REVISION NOTES
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LAND LAW LECTURE/REVISION NOTES STUDYING AT BPP UNIVERSITY
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Law of propertyLesson one – Introduction to Law of Property
Ownership, possession of property and the sale of goods act 1979
The two most important questions when dealing with the law of property is who is
entitled to the property and how they are entitled to use it. There is a difference between
owning property and being in possession of it.
Ownership and possession are two different concepts. If I own a phone I’m in possession
of it, but if it gets robbed, I still own the phone but no longer have possession of it.
This premise of ownership and possession being two different concepts is further
strengthened by the Nemo dat quod non habet rule in commercial law. The basic
principle here is that the person who doesn’t own the property cannot confer it on
another except with the owner’s authority. This basically means that the thief with the
phone, who has no ownership rights to the phone but merely has possession of it, sells
the phone to a purchaser, that purchaser does not have any ownership rights to be
passed to him. There are exceptions to this rule in section 13 Sale of Goods Act 1979.
What is land?
In England property can be classified into real and personal. The statutory definition of
what amounts to land is defined in the Law of property act 1925:
‘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, vertical or made in any other way) and other corporeal
hereditaments;’
Section 132 Land Registration Act 2002 goes further to state that:
Land includes - (a) buildings and other structures, (b) land covered with water and
(c) mines and minerals, whether or not held with the surface ”
What are the rights of land owners?
The definition of land is extremely wide in its scope.
A fixture is a chattel, which under the law becomes part of the land itself and belongs to
the land owner.
Section 205 LPA 1925 specifically mentions buildings and parts of buildings within the
statutory definition as forming part of the land. This is further developed by an old
maxim “whatever is attached to the soil becomes part of it”. Thus, any fixture passes
automatically to the buyer of that land, under S62 LPA 1925.
If the item has not become a fixture, then it will be a mere chattel and so will not pass
with the property to the purchaser and the seller can legally take it as his own on the
sale of the property.
,There is an old maxim “he who owns the land owns everything reaching up to the very
heavens and down to the very depths of the earth”. Ad coelum, ad inferos Latin
meaning
Rights to mineral deposits
An owner of land is entitled to any mineral deposit on the land he owns. However gold
and silver belong to the crown. Petroleum Production Act 1934 and *****stated that the
deposits of oil and coal and natural gas belong to the crown.
Rights below the surface of the land
The case of Star Energy Weald Basin ltd v Barcado ltd 2010 is relevant as it held that the
energy company by carrying out activities relating to the extraction of oil beneath a
property without the title owner’s permission, had committed trespass. The claimant
tried to claim a fair share of the spoils that the energy company had gained by the
extraction, but the courts only awarded damages to the claimant.
Rights to objects found on the land
Where there is an item found on the ground rather than in the ground ownership is more
difficult to determine. In the cased of Parker v British Airways Board 1982 a passenger
found a gold bracelet on the floor of the executive lounge at Heathrow airport. He
handed it in the owners of the land, so they could attempt to find the real owners. He left
his name and address claiming the item if the owners could not be found. BA sold the
bracelet. He challenged BA’s claim, and court upheld his claim. The court laid down a
number of rules on the rights and obligations of the finder:
The finder of the chattel acquires no rights unless it happens to have been
abandoned or lost, and he takes into his care;
If the finder is trespassing or acting with dishonest intent, then he requires very
few rights;
The finder of a chattel acquires ownership against all but the true owner, if he was
on the land lawfully;
An employee working in the course of his employment who finds an object, finds it
on behalf of his employers;
The finder is under an obligation to take measures to find the owner of the object.
The case of Waverly BC v Fletcher 1996 related to the defendant using a metal detector
in a public park owned by the claimant, Waverly Borough Council. The defendant found a
medieval gold brooch 9 inches below the surface. Held the council had a better claim
than the finder. The object was beneath the surface, the finder became a trespasser
when he began to dig. He had permission to walk in the public park, but he didn’t have
permission to use a metal detector and dig in the ground.
Rights to airspace above the land
In Bernstein of Leigh (Baron) v Skyviews & General ltd 1978 the claimant claimed
trespass because the defendant flew over his land without permission and took aerial
photos and tried to sell them to him. The claim was unsuccessful. The main principles of
the judgement were:
1. The owner of the land had the right to airspace above his property
, 2. The owner does not own unlimited rights over the airspace, otherwise these would
be trespassing each time a satellite flew over someone’s garden.
3. The owner owns as much of the airspace as he needs from the ordinary use and
enjoyment of his land.
The area of law is now mainly governed by legislation such as the Civil Aviation Act. In
S76 (1) it states that no action shall lie in respect of trespass or nuisance by reason only
for the flight of an aircraft over any property at the height above the ground which
having regard to wind weather and all circumstances of the case is reasonable.
Summary of the law:
The ownership of the owner who attempts to extend his ownership of a physical
surface to the airspace above his land is now limited.
As we see in Lord Bernstein v Skyviews & General ltd 1978 the defendant took
photos of the claimant’s house he tried to claim damages for trespass but was
unsuccessful.
Statute intervened by virtue of S76 (1) Civil Aviation Act 1982. Which states that
overflight by an aircraft is not actionable if they were flying at a height reasonable
in the circumstances.
The ownership to the depth of the earth is limited. In Bocardo SA v Star Energy UK
Onshore ltd 2010. Lord Hope referred to arguments that the rights should only
extend 1,000 feet, but he rejected any definite limit. Thus, this is a clear example
of an instance where ownership of land is limited to the terms of depth.
Recent developments in this area of law has sprung up by virtue S43-45
Infrastructure Act 2015; where a new set of rights of use for the purpose of
exploiting petroleum or geo thermal energy extraction at deep level, without the
need to notify the land owner is now being accepted ‘he who owns the land
owns everything reaching up to the very heavens and down to the very depths.’
This maxim has become LIMITED!
When it comes to property law, if an object is found in or attached to the land, the owner
of the property has the best claim to it after the true owners ‘finders keepers’ has validity
in land law.
Effect of the human rights Act (HRA) 1998 on land law
Article 8 (1) of the European Convention of Human Rights (ECHR) deals with family life
and home life. One fundamental issue is whether Article 8 concerns property, as on its
wording it could be said primarily to protect privacy.
The right in Article 8 (1) qualified in Article 8 (2) which provides that no interference with
these rights shall be justified except the interests of national security, public safety or
the economic wellbeing of the country, for the prevention of health or morals, or for the
protection of human rights and freedom of others. In effect this lays down the test for
PROPORTIONALITY
This has been considered by the courts in the context of whether the established
procedures under domestic law should be subject to judicial scrutiny under the ECHR.
The courts initially limited the scope of Article 8 so it had almost no effect at all.
In Harrow LBC v Qazi 2004 a local authority claimed possession of a council house from Q
who was formerly a joint tenant with his wife, she had given unilateral notice to quit the
premises which terminated Q’s tenancy. The house held by majority that the test for
proportionality was not a free standing one. As Lord Hope stated in Kay v Lambeth LBC
2006 and Leeds CC v Price 2006 provided that the courts consider ‘the requirements’
of the law and the procedural safeguarding which lays down the protection of the
occupier have been satisfied then there is no room for challenge under Human Rights
law.
, Thus, has the HRA 1998 changed the nature of property in land law? Lord Steyn would
have answered YES!
In Kay v Lambeth LBC 2006 Lord Bingham stressed the applicability of the conditions in
Article 8 (2) and said individual defendants must be given the opportunity to content that
they have not been met, and the European Court of Human Rights.
In McCann v UK 2008 they endorsed Kay. Against this is the point made by Lord Nichols
that there would be a ‘colossal waste of time and money’. If every case where possession
proceedings were brought under a statutory framework there could be a challenge under
the HRA 1998.
The ground seems to have shifted significantly as a result of two decisions of the
supreme court: Manchester CC v Pinnock 2010 and Hounslow LBC v Powel 2011
In Pinnock, the local authority sought possession against a tenant on the grounds that
the child living there had been guilty of serious anti-social behaviour. The supreme court
held in order for the domestic law to be compatible with Article 8, the court was asked to
make an order of possession of a person’s home at the suit of the local authority had to
have the power to assess the proportionality of making the order.
The test for proportionality has now become a separate test which is not automatically
satisfied purely because the requirements of domestic law have not been met. Lord
Neuberger who gave the leading judgement said that: ‘where the court is asked to make
an order for possession of a person’s home at the suit of the local authority had to have
the power to assess the proportionality of making the order and in making that
assessment, to resolve any relevant dispute of fact.’
Moreover, Neuberger expressly approved of the minority opinions in Harrow LBC v Qazi
2004. The use of proportionality test does not mean that tenants will find it easy to resit
applications for possession orders. Neuberger said that proportionality of making an
order for possession in favour of the local authority ‘will support merely not by the fact
that it would vindicate the authority’s ownership rights.’ In addition, he pointed out that a
local authority has other duties, such as ‘the fair allocation of its housing stock’ which will
often support an application for possession.
It can be said the Lord Steyn’s hope that the HRA would bring about a new landscape
may have now fulfilled this area of the application of possession orders where the person
faces the prospect of losing their home. Whether the new landscape will apply to other
areas of land law is still in doubt.
Property rights; Rights in Rem and Rights in
Personam.
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