WS 1 – THIRD PARTY RIGHTS, INTERESTS, FIXTURES
AND CHATTELS
Manual – Unit 1 FUNDAMENTAL AND PERVASIVE
CONCEPTS OF LAND LAW
Sub 1 - Introduction to Estates and Third-Party Interests in Land
1. Introduction
Multiple people can claim to have an interest in that land: owner of the land, and third parties
may claim to have rights in the same piece of land.
2. What is Land
2.1 Relationship of ‘Land’ and ‘Property’
“Property” refers to rights that confer upon a person a degree of control over a resource
(examples of rights: leases, easements and covenants).
The resource need not be land, it can be a car. Ownership of shares in a company will also
confer property rights.
2.2 What is Land?
Ordinary definition of land = ‘the solid part of the earth’s surface; ground; soil’
BUT inadequate definition for a lawyer.
→ The Lawyer’s Definition of Land
Section 205(9) 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; also a manor, an
advowson, and a rent and other incorporeal hereditaments, and an easement, right,
privilege, or benefit in, over, or derived from land; ... and “mines and minerals” include
any strata or seam of minerals or substances in or under any land, and powers of
working and getting the same…; and “manor” includes a lordship, and reputed manor
or lordship; and “hereditament” means any real property which on an intestacy
occurring before the commencement of this Act might have devolved upon an heir;”
Fairly comprehensive, but it is not exhaustive .
Possession of land ‘extends upwards to infinity and downwards to the centre of the earth’. (In
Latin, ‘Cujus est solum, ejus est usque ad coelum et ad inferos’.)
• BUT case law has curtailed the first part of this rule Bernstein of Leigh (Baron) v
Skyviews & General Ltd [1977] 3 WLR 136
• It is necessary for a landowner to be entitled to use some of the airspace above his
land for otherwise no one would be able to build on land.
• But for a person to claim he is entitled to an unlimited amount of airspace above his
land would mean that a trespass would be committed every time a satellite passed
over a suburban garden.
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, • → Bernstein case: the landowner’s claim to airspace should be restricted to such
height as is necessary for him to enjoy in an ordinary way the land that he owns and
the structures that are placed upon it. Beyond that he has no more of a claim to
airspace than any other member of the public.
The courts have to seek to balance the rights of the landowner and those of the general public
who, as well as the landowner, also have an interest in the use of airspace.
2.3 Fixtures are Part of the Land
Things attached to land → if they are not attached they are chattels, once they are attached
they become fixtures.
A fixture is treated as though it is part of the land to which it is attached. In other words, it
has ceased to be a chattel. This has important consequences for someone who is buying or
selling a house.
Two Tests to Identify a Fixture: Berkley v Poulett [1977] 1 EGLR 86
• the method and degree of annexation;
o requires some degree of physical annexation to land.
o The legal maxim is whatever is attached to the soil becomes part of it
(quicquid plantatur solo, solo cedit).
o This raises a presumption that the chattel has become a fixture, although the
application of the second test may rebut the presumption.
o If an object has been affixed to land in such a way that it cannot be removed
without causing serious damage to the realty, then it will be difficult for the
person who alleges it is still a chattel to prove this. On the other hand, if an
object is easily removed, it is easier to argue that it remains a chattel.
• the object and purpose of the annexation.
o looks at the reason for annexing the chattel.
o Applying the second test it is possible to argue that an object resting on the
ground by its own weight alone can be a fixture if the purpose of placing it
there was to enhance the realty. Similarly an object which is only lightly
affixed and which can be removed without causing damage may be a fixture
if, for example, it was placed in a room to make the room more beautiful as a
whole. Alternatively, an object may be securely affixed such that it raises the
presumption that it is a fixture. However, the reason for annexing the chattel
may be so that it can be enjoyed better as a chattel. In this case, the object may
be a chattel, despite the fact that it is affixed to the land.
o The more important test today is the second test: the object and purpose of the
annexation. However, the first test is still significant, in that there must be
some degree of physical annexation before a chattel can be treated as part of
the land.
• Two main exceptions to the rule that you cannot remove fixtures:
o a person who is selling land may include a provision in the contract for sale
that gives a right to remove fixtures.
o where the person who has affixed the object is a tenant: a tenant does have the
right, in certain circumstances, to remove fixtures known as ‘tenant’s fixtures’,
that is, trade, agricultural or ornamental fixtures.
• Berkley v Poulett objects:
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, o Pictures → They had been fixed into recesses in the panelling of the rooms.
The panelling had been installed at the beginning of the 20th century and
recesses had been left for pictures. Although this pointed to the pictures being
fixtures, the Court of Appeal did not accept that they were fixtures because the
pictures could not be considered part of a ‘composite mural’. They had been
put there to be enjoyed as pictures and no more.
o Sundial → The sundial was small and had been detached from its pedestal
many years before the sale. It no longer formed part of the realty and was not a
fixture.
o Statue → Although heavy, it was easy to remove it from the plinth on which it
stood. Whilst it could be argued that architectural design was the reason for
the siting of the statue, it was more likely to be the reason for the siting of the
plinth, leaving the owner free to choose what to place upon the plinth. The
statue was not a fixture.
o Plinth → firmly fixed to the ground and its siting was architecturally
important. It was a fixture.
Case law:
• D’Eyncourt v Gregory [1866] LR 3 Eq 382
o A number of freestanding items were considered by Lord Romilly MR to be
fixtures as they were part of the architectural design of the property.
o Tapestries and a particular portrait were essentially a part of the building itself.
o Carved kneeling figures and sculptured marbled vases were part of the
architectural design, the lions in the garden and the 16 stone garden seats were
also fixtures.
• Leigh v Taylor [1902] AC 157
o Certain tapestries displayed over canvas in wood framework attached to wall
and surrounded by a moulding fastened firmly to the wall.
o The House of Lords considered that the tapestries never lost their character as
chattels. The only way that they could be properly displayed was for them to
be fixed to the walls in this manner.
• Elitestone Ltd v Morris and another [1997] 2 All ER 513
o A bungalow (two bedrooms, a living room, kitchen and bathroom) rested on
concrete foundation blocks set into the ground.
o The tenants claimed that it was a house and that they had security of tenure.
o The freehold owner claimed that the bungalow was a chattel and that the
tenancy consisted only of the site, so the tenants could not claim the protection
of the Rent Act 1977.
o The House of Lords adopted a common sense approach and concluded that a
house that is constructed so as to be removable, whether as a unit or in
sections, may well remain a chattel. A house which is constructed in such a
way that it cannot be removed at all, save by destruction, cannot have been
intended to remain as a chattel. It must have been intended to form part of the
realty.
• Botham v TSB Bank plc (1997) 73 P & CR D1
o commonplace items: the Court of Appeal held that fitted carpets and curtains,
light fittings and gas fires connected to the building only by a gas pipe were
chattels.
o White goods manufactured to standard sizes and fitted into standard sized
holes were held to be chattels, although fitted kitchen units were fixtures.
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, 3. Concepts of Ownership
Two concepts or doctrines: tenures and estates.
3.1 The Doctrine of Tenure
The doctrine of tenure concerns the way in which land is held - from whom and on what
terms.
Origin: feudal system of landholding → all modern land law developed from this
• Since the Norman Conquest in 1066: in theory all land belongs to the Crown.
• William the Conqueror claimed ownership of all England by right of conquest and
rewarded his most important subjects by granting them land. They could keep it in
exchange for service to the Crown and then they could give it to reward lesser
subjects in return for services = pyramid or hierarchy
• But this method became obsolete overtime so doctrine of tenure lost importance
• Still found in area of leases and still technically correct to say that Crown owns all
land
3.2 The Concept of the Estate
A lawyer does not think of a person as owning land itself but rather as owning a period of
time. An estate = a period of time capable of division.
Land acquires a fourth dimension: time.
Since an estate is capable of division, a person owning an estate can create out of it a lesser
estate, or shorter period of time, and confer the benefit of such lesser estate on others.
Own an estate in land gives the right to enjoy or possess that land, or to receive any rents or
profits produced from that land.
Historically, could have many different types of estate in land. BUT since the Law of
Property Act 1925 there are only two estates in land which are recognised by the law today:
freehold and leasehold.
→ Estates in Land
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