Module: Land Law

Module Leader: Natalie

Sweeney

Email:
[email protected]

Staff Room: T3-02

Property Law
OUTLINE SYLLABUS
•Introduction & The Meaning of Land Law - estates and interests
•Unregistered Land – title of ownership has not been registered
•Registered Title to Land – title of ownership has been registered
•Co-ownership I - JT & TiC, Co-ownership II - Trusts of Land
•Leases - The leasehold estate, lease-licence distinction, leasehold
covenants and remedies for breach
•Easements – proprietary rights over land
•Freehold covenants - promise by the owner to do or not to do something
on his land
•Mortgages – a loan secured on land, mortgagors’ and mortgagees’ rights
Reading List
Can be found on WebLearn under ‘Reading List’
Core Texts
The following texts, always in the latest edition, should be purchased:
•Dixon, M, Modern Land Law, 2018 (view online)
•Mackenzie, J-A. and M. Phillips Textbook on Land Law, 2020
•Bogusz, B and Sexton, R, Complete Land Law, 2019
•McFarlane, B, Hopkins, N and Nield, S, Land Law Cases and Materials,
2018
Statute Book:
•Thomas, M, Blackstone’s statutes on property law 2020-2021,
NB: Statute books are permitted in the examination provided they are
not annotated or highlighted.
Reading List
Additional Reading
•Stroud, A, Making Sense of Land Law, 2018 (view online)
•McFarlene, B, Hopkins, N and Nield, S, Land law, 2020
•Gray, K. J and Gray, S, Land law, 2011
Further Additional Books can be found on the ‘Reading List’ on
WebLearn
Introduction to
Property Law
What is Property Law
about?
It is about people’s
RIGHTS in relation to property.

Land law is about the relationship

people and the state have with land.

6
Law of Property
Property law requires us to understand that ‘property’ is a relationship
between people over a thing, rather than the thing itself.
Property law is complex.
There are three ways in which rights in property can differ:

◦ Different strengths of property rights

◦ Different types of property rights
◦ Different sources of property rights
Different strengths of
property rights
Multiple people can have claims over a single piece of property, and the
law typically works by adjudicating on which person has the stronger
right.
Example:
Alice drops her watch in the park one day. The following day it is found
by Bertie, who picks it up and takes it. The day after that, Charles steals
the watch from Bertie.
•Who has the strongest claim?
•Who has the weakest claim?
•Whose claim lies in the middle?
•Who is entitled to the watch?
Different types of
property rights
Property law is about more than just ownership.
People can have various property interests that provide rights (or
restrictions) of usage.

Example:
Janet owns a detached house with a large garden.
In return for payment, Janet signs a deed granting her neighbour Eugene
a right of way over part of her garden, such that Eugene has a short-cut
to the road adjoining the other side of Janet’s garden.
Eugene sells her land to Anna.
•What right does Eugene have?
•What right does Anna have?
Different sources of
property rights
•Property rights may be derived from the common law.
•May also be derived from the principles of equity.
•Confer different rights: two types of property right, known as legal
and equitable interests
Example:
Claire buys a house, registered in her sole name, and takes out a 20
year mortgage as a way of financing the purchase.
Her boyfriend David moves in, and for the whole duration of the
mortgage repayment he contributes 50% of the mortgage payments.
•Does David have any right of ownership over the house?
•If so, how much might he claim for?
Ownership
Ownership is something that is dependent on law, as it involves
having rights over things that can be enforced through the
mechanisms of the law.
For example, to say, “this is mine” is meaningless, in the absence
of legal enforceability.
Someone else may have a stronger title than you.
Indeed, in the absence of law to define who is entitled to
something and what they are entitled to do with it, “this is mine”
can only mean, “I would like to keep control of it”.
Ownership
•The rights of use and enjoyment of an owner are not necessarily
unlimited.

•Proposition:
“it’s mine and therefore I can do what I like with it”
is not always (indeed, generally is not) reflected in law.

•A more accurate statement would be:

•“I am the owner and therefore I can do what the law allows an
owner to do”
Possession
Possession involves two elements:

1. Corpus possessionis:
Physical Element.
Involves having the physical control of the thing, whether moveable
or immovable.

2. Animus possedendi:
The mental element.
This mental element involves having the intention to retain control
and exclude others.
Possession – with consent
of owner
•The relationship between the owner and the lawful possessor is known
as bailment.

Example: loan, hire and delivery for storage, transportation or repair.

•A bailee is obliged to return the goods at the end of the bailment.

•Intention is to retain it for the period of the bailment.

Possession – without
consent of owner
Possession may be acquired by another without the consent of the
owner.
Example:
◦ Where goods are found by another and the owner is unknown.
◦ The theft of goods or
◦ The wrongful entry into control of land as by a “sit-in” protest or a
residential squat.

•Possession is ultimately obtained if there is the intention to exclude.

•Possession once gained, whether by an owner or by another, will
continue unless there is evidence of abandonment or unless someone
else takes possession.
Possession – relativity of
title
Right of ownership over property is relative to the claims of
others

•A person in possession is considered to have a title, so as to

be able to claim for interference with the thing possessed.
 Possession NOT
MERE custody /occupation
Someone with mere custody of goods or occupation of land does not
have a title and any claim concerning the property against third parties
must be made by the legal owner on whose behalf the custodian or
occupant acts.
However, a finder of goods, being in possession, does have sufficient
‘title’ to make a claim in respect of the goods. For example:
Armory v Delamirie [1722]
A chimney sweep’s boy found a jewel and handed it to a goldsmith for
valuation. When the goldsmith refused to return it, the boy successfully
sued him.
The fact that the boy did not claim through the owner was
irrelevant. He had possession before the goldsmith and thus
had a better title than the goldsmith.
Possession
Someone claiming through a void transfer of
ownership, but who has taken possession, will still
have rights against persons generally – Bank Transfer

Costello v Chief Constable of Derbyshire Constabulary

[2001] CA
A person, from whom a stolen car was seized by the
police, successfully sued the police for its return when
the period for which the police were authorised by
statute to retain possession expired.
“The possessor had possessory title that was good
against the world but not good against anyone with a
better title.”
2 categories of property
•Real property = estates and interests in land

•Personal property:
◦ (i) Tangible property
◦ (ii) Intangible property

19
What do we mean by
‘RIGHTS’ in property?

=
ESTATES in land
&
INTERESTS in land

20
ESTATES in land
•An estate = ownership of land for a period of
time

•2 types: FREEHOLD & LEASEHOLD

21
ESTATES in land

FREEHOLD estate

e.g. - an estate for a fee simple absolute in

possession (= potentially forever)

22
ESTATES in land

LEASEHOLD estate

= fixed period of ownership

e.g. an estate for 10 years

23
More than one estate can
exist in one piece of land at
a time
Orchards
Ellie has the freehold.
She gives Saif a 5 year lease (leasehold estate)
Note:
ORCHARDS
•Ellie still has the freehold while
Saif has the lease – she just Ellie still has freehold
Ellie: freehold owner
could not physically occupy the
Saif has a 5 year lease
land during the 5 years.

24
 INTERESTS in land
Ellie owns the freehold of
Orchards over which she gives:
y
Greed c
a n k pl
B
•Neighbour Abi - a right of way
ORCHARDS over the garden
•Neighbour Clive - a promise
Clive Ellie
that Orchards will never be
freeholder used for business purposes
•Greedy Bank plc which had lent
Abi money to Ellie - a mortgage

25
MULTIPLE rights in land
Estates Interests

•Abi
Elliehas
owns
an the
easement
freehold
•Clive has a restrictive covenant
•The
Saif owns
Bank has
a leasehold
a mortgage

26
What happens if Ellie
sells Orchards to Alec?
The big question = is Alec bound by the:
•lease
•easement
•restrictive covenant
•mortgage?

27
Meaning of Land
Physical Extent of Land
•The extent of land (i.e. the threshold that determines what
objects in or on the land qualify as being part of the land
itself) is important for various reasons.

Give examples: Why?

Physical Extent of Land
Examples of why the extent of land is important:

•Determines what the purchaser of land is entitled to receive

•Determines what rights the landowner has surrounding the
land (e.g. airspace)
•Determines the line between what landlords (holders of
freehold) and tenants (leaseholders) can retain at the end of
a tenancy
Physical Extent of Land:
the definition of land
s205 (1) (ix) of the LPA 1925 states:

“Land includes land of any tenure, and mines and minerals……

building or any parts of buildings …..and other corporeal
hereditaments (tangible property) , also….a rent and other
incorporeal hereditaments (intangible property), and an
easement, right, privilege or benefit in, over or derived from
land…”
Physical Extent of Land –
the definition of land
Thus, land includes inter alia:
•Buildings and other structures
•Land covered with water
•Mines and minerals, whether or not held
with the surface LPA 1925 s 132 (1)
Physical Extent of Land -
Maxims
There are two maxims related to land:

• Cuius est solum eius est usque ad coelum et ad inferos –

He who owns the land owns everything extending to the
heavens and depths of the earth.

• Quicquid plantatur solo, solo cedit –

whatever is attached to the ground becomes a part of it.
Physical Extent of Land -
Space
Cuius est solum, eius est usque ad coelum
et ad inferos –
He who owns the land owns everything
extending to the heavens and depths of the
earth.

•How far is this maxim true?

Depths of the Earth - Common
law & Treasure Act 1996

Common law position

• Treasure trove belongs to the
Treasure Act 1996
crown alone •Treasure Trove abolished by the
• Had to be gold or silver TA 1996 and fresh provision is
• Must have been deliberately made in relation to treasure.
hidden
• Real owner unknown or
untraced
Depths of the earth:
Treasure Act 1996
Treasure is defined in s(1)
a) Any object at least 300 years old when found which:

i. is not a coin but has metallic content of which at least 10% by weight is
precious metal.
ii. when found, is one of at least two coins in the same find which are at
least 300 years old at that time have that percentage of
precious metal, or,
iii. When found, is one of at least ten coins in the same find which are at
least 300 years old at that time.

b) Any object at least 200 years old when found which belongs
to a class distinguished under s2 (1)
Depths of the earth:
Treasure Act 1996
Ownership of treasure which is found.

1. When treasure is found, it vests, subject to prior interests and

rights—

a) in the franchisee, if there is one;

b) otherwise, in the Crown.

Depths of the earth:
Treasure Act 1996
s 10 – Reward
The reward may be payable to—
a) the finder or any other person involved in the find;
b) The owner/ occupier of the land at the time of the
find;
c) any person who had an interest in the land at that
time, or has had such an interest at any time since
then.
Extending to the Heavens -
The Civil Aviation Act 1982
The Civil Aviation Act 1982, s76 imposes a
restriction upon an owner’s right to air
space:
“No action shall lie in respect of trespass or
in respect of nuisance, by reason only of the
flight of an aircraft over any property at a
height above the ground which, having
regard to wind, weather and all the
circumstances of the case is reasonable”
Extending to the Heavens case
example: Kelsen v Imperial
Tobacco Co. [1957] 2 QB 479
•Kelsen, held a lease of a one-storey tobacconist’s shop.
•Defendants owned the adjacent building and had a sign on the wall
that encroached some 4 inches into the airspace above Kelsen’s shop.
•Subsequently, this was replaced with a new sign that encroached some
8 inches into Kelsen’s airspace.
•Kelsen gave notice that the sign must be removed.
•McNair J. held that the lease included a lease of the
airspace above the shop, and on this basis the Imperial
intrusion of the sign into the airspace constituted a Tobacco
trespass. Company
K’s tobacco
shop
 Extending to the heavens case
example: Baron Bernstein of Leigh v
Skyviews & General Ltd [1978] 1 QB
479
• Defendants flew over the plaintiff’s land for the purpose of taking and selling aerial
photographs.
• Plaintiff claimed damages for the trespass into his airspace.
• Defs argued that the aeroplane had not flown over the plaintiff’s land.
Griffiths J.
• If the Maxim (…up to the heavens) was applied literally it would lead to the
absurdity of a trespass being committed by a satellite every time it passes over a
suburban garden.
• “The problem is to balance the rights of an owner to enjoy the use of his land
against the rights of the general public to take advantage of all that science now
offers in the use of air space.”
• “This balance is best struck by restricting the rights of an owner in the air space
above his land to such height as is necessary for the ordinary use and enjoyment
of his land and the structures upon it, and declaring that above that height he has
no greater rights in the air space than any other member of the public.”
Physical Extent of Land –
Space
Other Case Law
Airspace above:
•Anchor Brewhouse Developments Ltd. V Berkley House (Docklands
Developments) Ltd. [1987] 2 EGLR 173 - Held that the tower crane
booms invaded P's air space; this constituted trespass
•Haines v Florensa (1989) 59 P & CR 200 Held A lease of the top part
of a building which included the roof also included the airspace above
the roof
Underground space:
•Grigsby v Melville [1974] 1 WLR 80 CA held: cellar of a semi
detached property was part of the land even where entrance to it was
only by a door of the neighbouring semi (semi had previously been
freehold).
•Metropolitan Railway Co. v Fowler [1893] AC 416 HL
Physical Extent of Land
Landowner has rights to mineral deposits, except:
gold, silver, coal, oil and natural gas

Why?
Physical Extent of Land

Fixtures & Fittings

Physical Extent of Land -
Fixtures

Quicquid plantatur solo, solo cedit

=
Whatever is attached to the ground becomes a part of
the ground
Physical Extent of Land –
Fixtures and Fittings
•Fixtures becomes part of the land and fittings do not.

The two tests of Fixtures and Fittings:

Holland v Hodgson (1872) LR 7 CP 328
•The degree of annexation
o Can the item be removed from the land without causing too much
damage?

•The purpose of annexation

o Was the item put there for its pure enjoyment, or to enhance the land?
Test 1. The Degree of Annexation
Holland v Hodgson (1872) LR 7 CP
328

Blackburn J, concerning the degree of annexation test

stated:
‘…if an article in question is no further attached to the land
than by it’s own weight it is generally considered to be a chattel’

Thus, spinning looms bolted to the factory floor were held to be

fixtures.

This is not a conclusive test: even if the degree of annexation is

substantial, it could still be regarded as a fitting rather than a fixture as
a result of considering the purpose of annexation test
Test 1. The Degree of
Annexation
• Generally, there is a presumption that an object which has been
firmly attached to the land is prima facie a fixture, while one
which is merely resting on its own weight, is not:
Berkley v Poulett [1976] EWCA Civ 1
Marble statue of a Greek athlete weighing half a ton
and merely standing on a plinth held to be a chattel.

Deen v Andrews [1985] 1 EGLR 262

Greenhouse, resting on its own weight, not
attached to land and considered primarily a chattel.
Test 2. The Purpose of
Annexation
QUESTION: whether the object has been ‘fixed’ for the more convenient
use of the land or building OR for the enjoyment of the thing itself:
Leigh v Taylor [1902] AC 157 HL
Tapestries, nailed to wall, were chattels “put up for
ornamentation and for the enjoyment of the person whilst
occupying the house”.

D’Eyncourt v Gregory [1866] LR 3 Eq 382

Marble statues deemed fixtures, whether or not attached
to ground, as there to increase people’s enjoyment of land.
They were part of the architectural design of the grounds.

See also Re Whaley [1908] and Chelsea Yacht & Boat Club Ltd v Pope [2001]
Fixtures or Fittings
(Chattels)?
Elitestone Ltd. v Morris [1997] HL 1 WLR 687

Objects on land can be put in 3 categories:

1. Things intended to become part of the land,

2. Things intended to make a permanent improvement to the land (or
building), and
3. Things attached simply for their best use as chattels.
(1) and (2) are fixtures, (3) is chattels.
HL held: bungalow resting on concrete blocks could only
be removed by demolition and therefore was land
and the tenant was protected by the Rent Act 1977.
Fixtures or Fittings
(Chattels)?
Botham v TSB Bank [1997] 73 P & CR D1
CA made it clear that the permanence of the attachment is also relevant.
This is separate to the degree of attachment.
Fixtures:
• Bathroom fittings (mirrors, taps, plugs and showerheads) and
• kitchen units
• Since they were necessary for the use of the rooms, based on the degree of
annexation and permanence involved.

Fittings:
• Light fittings did not have the degree of annexation or permanence (unless
recessed into the ceiling). They were easily removable being fitted by tracks.
• Carpets and curtains not capable of becoming fixtures due to temporary
attachment and lack of permanent improvement to the building.
• Kitchen ‘white goods’ (fridge, freezer, dishwasher etc) only had slight degree
of annexation which was not sufficient for them to become fixtures.
 Summary
•An object which has been firmly attached to the land is
generally a fixture, while one which is merely resting on its
own weight is not.

•The question is whether the object has been fixed for the
more convenient use of the land or building rather than for
the enjoyment of the thing itself.

Consequences?
Right to Remove Fixtures
Landlord and Tenant
•Certain fixtures, ‘tenants fixtures’ may be removed by the tenant during
his tenancy or a reasonable time thereafter.

Mortgagor and Mortgagee

•All fixtures on mortgaged land are included in the mortgage, and the
mortgagor may not remove them during the currency of the mortgage,
even those affixed after the mortgage commenced.

Vendor and Purchaser

•If something is a fitting it can be removed by the seller of land, whereas if
it is a fixture it comprises part and parcel of the land, i.e., it passes to the
purchaser, as illustrated in Elitestone Ltd v Morris & Another [1997]