PROPERTY REVISION NOTES
WHAT IS A PROPERTY RIGHT?
- Property rights refer to the theoretical and legal ownership of specific property by
individuals and the ability to use and enjoy the land.
- Entitled to the value of the thing -> right in rem
- Can be defined by key characteristics; Ainsworth – rights affecting property must be:
o Definable identifiable by third parties
o Capable in its nature of assumption by third parties eg when A grants B a
right, B can grant it to C.
o Have some degree of permanence or stability
- Problems with the Ainsworth criteria -> doesn’t explain all property rights because
some are not definable or identifiable by 3rd parties eg trusts of land, mere equity,
short leases, overriding interests etc
Personal rights
- Personal rights are rights in personam -> only the parties involved are bound
- You can have a property right arising from a contract eg a lease agreement
- Privity of contract = third parties are not bound
- Knowledge and payment are irrelevant -> you can’t enforce a personal right against a
3rd party.
Ainsworth:
o Case: H & W live together. Only H’s name in on title to house. W spends savings on
maintaining house in good condition. Unbeknownst to W, H secures loan on value of
house, defaults. Bank demands possession of house to sell. W resists. Courts awards
bank possession.
o Issue: Land Registration Act 2202 (LRA) s3 -> certain interests are 'overriding',
meaning even if X not registered, right can be asserted against those with registered
interest in the property. One of these overriding interest is, any interest belonging to
a person in actual occupation in the property. Could bank take possession?
o Held: W had a right of occupation because of her status as spouse of H, the owner,
but that is a personal right exercisable only against H. Her expenditure on houses did
not gain her a proprietary interest in it.
Williams v Boland
o Case: H & W live together. Only H’s name in on title to house although W
contributed money to its purchase. Unbeknownst to W, H secures loan on value
of house, defaults. Bank demands possession of house to sell. W resists. Court
refuses Bank possession.
o Held: W’s contribution towards the purchase gave her a proprietary interest in
the house which her occupation protected against TPs such as the bank.
,Permission vs property rights
- Licences
o A licence is when one party gives another party permission to do something.
In this context, a permission to do something on someone else’s land
- Types of licences:
o Bare: revocable at will by the grantor. No consideration or payment between
the parties. Can revoke the licence but must give ‘reasonable notice’ – allow
time to leave.
o Defence to trespass.
o Eg dinner invitation to someone’s house
o Revocation must be communicated
Snook v Mannion [1982]: police man exercising his right and he was
told to leave the premises. The policeman did not understand the
request to leave – saying ‘fuck off’ deemed insufficient to indicate that
presence of policeman was unwanted.
Accused of trespass -> court said this was a mere abuse rather than a
request to leave. No trespass.
o Contractual: in exchange for consideration. Reward for breach are damages
or specific performance. A person who occupies land but who cannot satisfy
all the requirements for a lease will have a contractual licence.
King v David Allen & Sons Billposting (1916): Tenant of cinema lease
gave C a license to advertise, in exchange for fee. Tenant lease ended
+ new lease given to new tenant. C wanted to continue advertising.
Held: A licence creates nothing but a personal obligation and could
not be enforced against new tenant. Termination of the lease by
either party would also terminate the possession of any license
granted by the tenant to another. Contractual licenses do not bind
successors as they are only personal rights.
Remember: contractual licenses are personal, non-proprietary rights
who do not relate to the land. They only bind parties that entered
them. New tenant not party to agreement, so not bound by license
even if it still existed
Hunter v Canary Wharf Ltd (1997) -> had no right to claim an action
for trespass because as licensees they had no proprietary interest.
Licences can exist alongside possessory (proprietary) rights -> a
licensee who goes into possession of the property subject to the
licensee has a weak possessory right.
o Manchester Airport v Dutton [2000] -> MA had licence to enter National
Trust land in order to work on new runaway. Before MA could enter,
environmental activists got in to protest. They set up a camp without a
, licence or consent. Subsequently, the National Trust granted the Airport a
licence to enter the land, the Airport then applied for and obtained an order
for possession of the land.
o The defendants argued that the grant of an order for possession was only
available to someone with a title or an estate in land. As a mere licensee, the
Airport lacked this – they came before the Airport and had possession.
o Held: MA succeeded in action for trespass, evicted the protestors and order
for possession upheld. Granting possession to a mere licensee is possible if
necessary, to give effect to the licensee’s right under his contract with the
licensor. The court held that it made no difference whether the Airport had
actually occupied the land before the protestors.
o The protestors’ right to the land was independent of the National Trust and
thus weaker than MA’s.
LAND
- What is land?
o Statutory meaning -> LPA 1925 s205(1)(xi): Land includes land of any tenure
and mines and minerals whether or not held apart from surface, buildings or
parts of buildings and other corporeal hereditaments …
- Physical context of land
o We live in 3 dimensions: ‘he who owns land owns it up to the heavens and
down to the depths of the earth’
- Bernstein v Skyview & General Ltd
o Claimant sued for trespass when a place was flying above this house
o The air is an open highway
o Held: C owned all that is above his property but only to the extent of what is
reasonable distance above his land
o Property into air space above land is limited to ‘such as necessary for the
ordinary use and enjoyment of the land’
- Bucardo SA v Star Energy UK
o Star energy was extracting oil from the ground and it was directly under B’s
land. B refused to give the company the oil, arguing that it was trespass to his
land.
o Unlike the air above, everything that can be touched and worked with must
be owned by someone – we can access beneath the soil
o SC held: nominal damages awarded on the basis of trespass
- Property rights extend to physical surface area of the land and the lower airspace
o any invasion of this lower airspace is prima facie actionable as trespass
o a landowner has no claim to trespass where there is interference with his
upper airspace – because it is not necessary for the reasonable enjoyment
and use of land: Bernstein
, - Other things that are within a landowner’s property rights:
o Buildings or parts of buildings found on the land
o Wild plants growing on the land
o Dead wild animal killed on the land
o Fixtures – chattels that become attached to the land
o Some items found on land
- Whatever is affixed to the soil belongs to the soil – does it?
- Can it belong to the soil even if it is not affixed to it?
- Leigh v Taylor
o Tapestry on the walls, owner died
o Can the tapestries be passed with the building?
o Held: purpose attaching the tapestries to the wall was for the better
enjoyment of them as tapestries. It was not intended for them to become a
part of the fabric of the house.
o Purpose of annexation test: consider the purpose for which the object has
been annexed to the land. If annexation is merely to enjoy the object as a
chattel, it will remain a chattel.
o If it is to make an improvement to the property itself, the chattel will become
a fixture
o Object of chattel must be judged objectively
- Elitestone v Morris
o M lived in a wooden bungalow on land owned by E. He wanted to claim that
he had a lease of the bungalow and so qualified for statutory protection.
Elitestone argued instead, that the bungalow was not part of the land but
was an independent chattel, so M did not qualify for statutory protection
o Wasn’t fixed to the land – resting on blocks
o An object which is brought onto land may be classified under one of 3
categories. It may be a chattel, a fixture or part of the land ….
o If it is removable as a unit or in sections may remain a chattel even though
temporarily connected.
o HL held that the bungalow was ‘part and parcel of the land’ since it could not be
removed without destruction (disassembly) and so was not an independent
chattel -> possible to have a lease protected by statute
o Test: the degree and the purpose of annexation
o 2 key factors identified -> the extent to which the bungalow was physically
attached to or integrated with the land AND the purpose for which it had been
thus attached.
o Degree of annexation test: the greater the degree of annexation, the more likely
the object is a fixture. The test must be used in conjunction with the purpose of
annexation test
- Botham v TSB Bank plc
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