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Lecture notes Year 1 Property Law (Lecture and PBL Notes)
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Property LawProperty - Two Types
Real Property - land
Personal Property – Can include tangible moveable items as well as intangible things such as
copyright
The reason for this divide is that different remedies are available for different types of property.
When deprived of land, the claimant’s remedy was return of the thing itself (i.e. the land). The
remedy of the return of the land was not only against the other party, but any other person. This is a
‘right in rem’ (‘res’ = latin for ‘thing). For other types of property the remedy was a right to damages
against a particular person. A right in personam (e.g. monetary compensation)
Property Rights – Two Types
Personal Rights (right in personam) – owed to a particular individual –It is an obligation such as
part of a contract. It is binding only against a particular individual, not the world. (binding only
against the people who created the agreement)
o For example, students have a personal contractual right (permission or license) to use
university furniture. If the university sold this furniture, the personal contractual right
would not bind third parties (the purchaser). The contract creating the personal
contractual right is only between the student and the university, not binding on third
parties
Proprietary Rights (right in rem) – Are generally capable of binding the world/ third parties.
o For example, proprietary rights can be attached to land, therefore everyone must take
account of them, no matter who you are
o In relation to land; Proprietary rights can vary from being very extensive (eg ability to
exclusively possess and use land), to very narrow (eg right to fish or walk across land).
Proprietary rights can determine what a person may do with the land. There may be
numerous proprietary rights over the same piece of land 1
Example of how this works in practice – Hill v Tupper (1863)
o Owner of canal gave ‘exclusive’ right to Hill to rent boats out on their canal. Tupper,
a pub owner on the side of the canal, began to rent boats out. Hill claimed he had a
proprietary right (easement), therefore claiming he could enforce it against Tupper.
Court rejected this, saying the right was only personal. Therefore Hill could only
bring a case against the canal owners for breaching their contract which contained
the ‘exclusive’ right to hire out boats.
o Also brought in issue of numerus clausus – even if both parties intend to create a
proprietary right, this is not always enough. The court have to decide whether the
specific purpose of the agreement can be a proprietary right (easement for hiring
boats out on canal). Courts do not want to add more proprietary rights, so it has to
fit within an existing one. In this case it did not meet the requirements of an
easement, so it could not be proprietary
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37 Court of Appeal – property should be
thought of as the rights you might have in something
Distinguishing Proprietary from non-proprietary rights
- Fundamental part of property law is the difference between proprietary and non-proprietary
rights
1
Victoria Sayles, Land Law Concentrate: Law Revision and Study Guide (6th edn Oxford University Press 2018)
, - Main distinction is that proprietary rights generally bind third parties, non-proprietary rights
(eg personal/contractual rights) do not. The distinction between proprietary rights and non-
proprietary rights is not always easy to make
- Leading case on the issue is National Provincial Bank Ltd v Ainsworth [1965] AC 1175 which
provides a not particularly useful definition. A property right is:
o Property rights need to be definable
o Identifiably by third parties
o capable in its nature of assumption by third parties
o have some degree of permanence or stability
- Problem with this test is that it describes the qualities of a property right as much as it sets
the standards for them. There is a large degree of circularity
Numerus Clausus – In relation to land it is probably easier to identify which rights are proprietary
and which are not, rather than formulating a general formula. As a general rule, the courts have
sought to restrict the number of proprietary rights because of their potential ‘universality’ of effect.
The limited number of proprietary rights recognised by a legal system is described as the ‘numerus
clausus’ – this is Latin for ‘closed list’.
Lease/Licence – one of the main proprietary/non-proprietary right differences is that between a
lease and a ‘mere’ licence to occupy land. The crucial factor in determining whether or not the
relationship between the parties is a lease or a licence is the intention of the parties, rather than the
words used to describe the relationship. A lease is a proprietary right. A licence is a personal right
Ownership
Ownership of often used to mean two different ideas:
o ‘Ownership’ is used when discussing title (rights) to property – for example, if you
buy land how do you establish that they are the owner and therefore entitled to sell
it
o ‘Ownership’ can be used when discussing beneficial ownership – who has the right
to do things in relation to property? Who has the right to use property, derive
income from it, manage it etc?
Ownership is built upon the right to possess – This enables owners to protect and maintain
ownership:
o Owners can exclude 3rd parties/non-owners from the property
o The owner has the right to not be excluded from the property
o So, if you own land you should be able to exclude the state from your land (apart
from criminal investigations/public health etc)
Entick v Carrington 1765 – People have a right to their own private property. The law does not
recognise interest of the state as a justification for what would usually be an unlawful search. Lord
Camden CJ said: ‘Our law holds the property of every man so sacred, that no man can set his foot
upon his neighbour’s close without his leave; if he does, he is a trespasser, though he does no
damage at all; if he will tread upon his neighbour’s ground, he must justify it by law’
‘Bundle of rights’
Ownership can be considered as a ‘bundle of sticks’ or a ‘bundle of rights’. Ownership can
take different forms and have different levels depending on which sticks are in the bundle.
This fragmentation of ownership can last for different amounts of time (for example hiring a
, car fragments the ownership for just a few days/weeks). A.M. Honoré considered the
standard incidents (sticks in the bundle of rights) that an owner has over property:
o Possess, use, right to manage, right to the income, right to the capital, right to
security, transmissibility, absence of term, duty to prevent harm, liability to
execution
Yanner v Eaton [1999] HCA 53 – ‘Property’ does not necessarily mean full, beneficial or legal
ownership. Instead, property is a legal relationship with an object which grants a person the right to
exercise power over the object in some respects. Property is a variable concept which can have
differing degrees of intensity. Property can mean having property in something (a right to do
something), whereas in English Property is used as a word to describe the thing itself. Think about
property as the right over something, not the thing itself.
Limits of ownership
- In practice, the ownership of land/chattels never gives owners complete control of the thing
owned. For example owners must look after their dogs, and factories have regulations about
pollution etc
, Real Property/Personal Property
Personal Property
- Often considered to be moveable property, however can include tangible and intangible
property
o Tangible property – any physical moveable object
o Intangible property - eg intellectual property, patents, copyrights, life insurance
contracts, securities investments and partnership interests
Real Property 2
- Land and fixtures (things so sufficiently annexed to the land that they accede to it)
What is land?
Land is defined in s. 205(1)(ix) Law of Property Act 1925 (‘LPA 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; also … a rent and other incorporeal hereditaments,
and an easement, right, privilege, or benefit in, over or derived from land …”
- Corporeal Hereditaments - permanent tangible object that can be seen and handled and is
confined to the land. Materials, such as coal, timber, stone, trees, plants or a house are
common examples of this type of hereditament
- Incorporeal Hereditaments – an intangible right such as an easement
- Land includes any type of tenure, leasehold or freehold. Land is also 3 dimensional. It can
include the land below or airspace above. People can own different strata of land - Bocardo
v. Star Energy [2010] UKSC 35, [2011] 1 AC 380. This case followed the Medieval Latin
maxim ‘est solum eius est usque ad coelum et ad inferos’ (‘the person who owns the land
owns everything reaching up to the very heavens and down to the depths of the earth’).
- The airspace only extends to the level necessary for the ordinary use and enjoyment of the
land and structures on it (lower airspace) - Bernstein v. Skyviews [1978] QB 479 3 because it
would be absurd that any time a satellite passed over a garden this would constitute a
trespass4
- Mitchell v. Mosley [1914] 1 Ch 438 – Land includes everything (unless you can find
something to the contrary) everything down to the centre of the earth. This includes all that
is supra (houses, trees etc) and all that is infra (clay, mines etc)
- This ‘something to the contrary’ could be a clause under the Treasure Act 1996, or Coal
Industry Act 1994 (See objects found ‘in the land’ section below)
Building and Constructions - Part and Parcel of the land?
- Follow maxim of ‘superficies solo cedit’ (a building becomes part of the ground)
- Constructions integrally liked to the land accede to the realty and become part of the land -
Elitestone v. Morris [1997] 2 All ER 513 (a wooden hut resting on top of concrete pillars was
not a ‘fixture’ because it was not attached. But because it could not be removed without
demolition it was deemed part and parcel of the land, therefore adding a third dimension to
the chattel/fixture/part and parcel of the land issue). Chelsea Yacht and Boat Club v. Pope
[2001] 2 All ER 409 – (house boat not part of land it was moored to because it was moored
with easily removed plug-in or snap-on moorings)
2
Land law Gray, Kevin J. ; Gray, Susan Francis. 7th ed., Oxford : Oxford University Press c2011 p.9
3
Land Law Directions (6th edn) Sandra Clarke and Sarah Greer 2018
4
Land law Gray, Kevin J. ; Gray, Susan Francis. 7th ed., Oxford : Oxford University Press c2011 p.5
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