Evolving Land Ownership Laws

As illustrated by the ever-changing English right to light laws, there is nothing that remains for a lifetime, and the original principle of owning land on the vertical infinity basis has been challenged over the years. The “cuius est Solum, eius usque ad coelum et ad inferos,” tenet came into light during the Corbett v Hill [1870] case, where the court gave consideration to a conveyance sale that had resulted in underground flying freeholds. In his ruling, Sir William James ruled that the owners of lands owned everything up to the sky. The idea has been eroded by the onset of air travel as well as subways. While in the past, the principle was quite influential, with time, its influence waned. While it was previously assumed that owners of land owned the land itself as well as everything in, below or above its surface, today, that is not necessarily the absolute case and land owners no longer have unmitigated rights regarding the things below and/or above their lands’ surfaces.

Owners of land own the airspaces that are above their land and are capable of bringing about trespass actions against intruders and whenever there are objects projecting into their airspaces. The rights to airspaces that are above the land are however restricted to such heights that are reasonably essential for the owners daily access and use of structures on their land.

In the Bernstein v Skyviews & General Ltd [1977] case, it was held that landowners were only entitled limited airspace heights as were necessary for the lands normal enjoyment and use. In the case, the defendant had taken elevated property photographs and had attempted to have the individuals who owned the properties photographed buy the pictures. The farm where the photographs were taken was in Kent and its owner launched a claim complaining that the pictures were captured without their permission and in intrusion to their property and trespassing of their airspace. In the final ruling, while it was agreed that the actions of the photographer amounted to actions of trespass, these were not adequate actions to guarantee a remedy in relation to the photographs informed by the fact that the action of taking photographs was not capable of turning actions that were not trespass into trespass.

In the Star Energy Weald Basin Limited and another v Bocardo SA [2010] case, it was held that while the principle of cuius est solum, eius usque ad coelum et ad inferos conformed to common law, the rights of land owners to the airspace above their lands were limited as it did not extend infinitely but to only the necessary heights for normal use of the land as well as the structures built on it. Aeroplanes and similar vessels merely flying above people`s properties could not qualify as a tort of trespass. The ruling also showed that for fracking operators to drill under lands, they had to get the consent of the owners failure to which they could be charged with the trespass tort. In the case, Star Energy had dug up Bocardo`s land for the oil deposits that were underneath the land without Bocardo knowing or approving. The ruling that was passed held the claim by Bocardo from Star Energy. An affirmation was passed by the court that the works by Star Energy was not as deep to bring about the ownership absurd principle and as such, Star Energy was found to have trespassed. From the case, it is evident that owners of estates have rights to prevent unwanted subterranean access. The statement by the court on absurd ownership implied there being certain underground depths beyond which ownership would be absurd such that owners would no longer have control rights over them and to whatever happens beyond those depths.

This ruling evidenced that while the tenet held some prominence, it acted as an imperfect guide because it no longer applied to the use of airspace above heights which were capable of interfering with or impeding the normal acceptable land use.

Down to the depths of the earth, the principle of ad coelom has also been challenged and is largely limited. In consideration of the extent of downward ownership. While owners of land own rights to the spaces below the surfaces of their land even in those instances where those spaces were created by others and landowners had no access to them. Generally, owners of land also have an entitlement to minerals and other valuable products within their lands even though the right is conditional upon the Crown rights regarding different minerals like silver, gold, natural gas, coal and oil. In the Waverly Borough Council v Flethcer [1995] case, an enthusiast of detecting metals, Ian Fletcher, found a medieval gold brooch nine inches below the surface of the earth in Farnham Park that was owned by Waverly Borough. Waverly Borough Council made a claim for the trove maintaining they owned the brooch. In concluding the case, it was ruled that the Council were the sole owners of the brooch by virtue of owning the land from which the treasure had been extracted.

Best claim on fixtures and chattels

Anything that is attached to a piece of land or attached to a property qualifies to be a fixture. Characteristically, fixtures belong to the owners of the land while chattels belong to others. During the transfer of ownership, the ownership of fixtures transfers to buyers and sellers are not capable of laying claim to them as they now belong to the transferee. The original owners of the land are not able to remove these items that fall under the category of fixtures from the properties whose ownership they have transferred.

Chattels that are attached to land physically indicate prima facie that they are fixtures. In the Holland v Hodgson [1872] petition, one mill owner bought some looms that they intended to use in their mill. They went ahead and used nails which they drove into wooden beams to attach the looms to the stone floor. These looms could be removed with ease. Fast forward, the mill`s owner mortgaged it but was not able to continue paying the mortgage. As a result, the mill was reclaimed by the bank the court was tasked with determining if the looms formed part of the repossessed land or if they were simply chattels. In his ruling, the judge determined looms to be fixtures, and therefore part of the mortgaged property. Take a deeper dive into Legal Framework of Adverse Possession with our additional resources.

It is however, worth noting that physical attachments are not always conclusive and courts from time to time, consider the annexed object/ fixture as well as the extent to which these fixtures have been incorporated into the land.

The examination of the degree and object of annexation was introduced by Blackburn J which outlines that articles that are added, albeit slightly, to land have to be thought of as parts of the land except in cases where their affixation was intended to serve as chattel. In line with the test, the question was on the attachment of the chattel facilitated a land owner to better enjoy the land or increased their convenience in using the piece of land. The reason for incorporation or annexation is another test that is used to conclude items as being either chattels or fixtures. According to this test, objects that can be removed without bringing about any significant disturbances and damages physically and that have no purpose to the land then they remain as chattels. The part and parcel test is also used to ascertain objects as being either chattels or fixtures. Based on this test, in the event items have become part and parcel of pieces of land, then they become fixtures. What that implies is that in the event there are no ways to remove the items from the land without bringing about damages on the piece of land, these items qualify as fixtures. Additionally, the law states that fixtures are to remain as they are after the transfer of ownership, unless the contract of sale specified otherwise.

In the case of Robert, a costly range cooker that has been specifically built to conform to the kitchens particular shape and dimensions qualifies as a fixture because it has been attached to the kitchen’s floor and connected to a power or gas supply system. Steven cannot lay claim to this cooker. The cooker was specifically designed to conform to the shape and size of the kitchen and as such, forms part of its architectural design. The cooker is also intended to improve the appearance of the kitchen.

The several paintings, Liverpool shirt, map, canvas and moose head found in the bedroom are chattels and Steven can claim these back. None of these items forms or are part of the room’s design. The large garden ornament that is shaped as an animal such that it generates an appealing outlook is a fixture, therefore Steven cannot also lay claim to it. These large garden ornament is part of the house’s architecture. In the D`Eyncourt v Gregory [1866] case, the judge was tasked with ruling whether stone garden seats, vases resting on nitches, ornamental lion statutes were chattels or fixtures. In the final ruling it was held that these tapestries qualified as fixtures because they had become a central part of the room and its decoration owing to the fact that they were attached as wallpapers. On the other hand, the garden seats, vases and lion statute were considered fixtures as they were a part of the house’s general architecture. Judge Romilly, in his ruling, said that it did not matter whether cement had been used to fix the different items or whether they rested on their own weights. What really mattered was whether the items were part of the halls architectural design.

The make shift gym is a chattel and Steven has a right to retrieve it. None of the equipment in the make shift gym is fixed or attached to the floor even though the racks in the garden are bolted onto the wall and are intended to be used part of the gym equipment. Additionally this make shift gym does not form part of the room’s architectural design and neither was it intended to bring about long lasting improvements to the room or its appearance.

In the Botham v TSB bank [1996] case where the bank moved to repossess a house owned by M and Mrs Botham after they had defaulted their mortgage. Before repossessing the house the Court Appeal went ahead to determine whether the different items in the house qualified as chattels or fixtures. In the final ruling of the case, it was determined that the lavatory, bathroom fittings and the bath together with the units in the kitchen and the sink qualified as fixtures. Other items like cookers, dishwashers, washing machines, carpets and curtains were classified as chattels. In the ruling, the judge said that any such items that when viewed objectively a determination was made that they were intended to bring about lasting improvements to buildings, then the objects would qualify as fixtures. On the other hand, items whose attachments are temporary and are not necessarily meant to be used have been classified as chattels.

Joint tenancy

Survivorship operates in joint tenancies in that whenever one member dies, those who are left behind benefit from the dead tenant’s entitlement and remain entitled to the entire property. What that implies is that joint tenants are not capable of leaving their interests in the pieces of land they own with others to other people in their wills. Also, when one passes on, their stake in the property does not form part of estate in case they died without writing wills, that is if they die inestate. Dimitri`s interest were passed to the rest of the individuals in the joint tenancy following his death.

Joint tenants are capable of severing survivorship rights without the other joint tenants consent. Survivorship puts surviving tenants in a position of receiving the operations of law the interest that the deceased tenant held previously while they were alive.

In a joint tenancy, any one joint tenant who wishes to severe their tenancy has to give the other joint tenants written notices containing their intentions. That is in line with the Law of Property Act (1925), section 36(2). This is a unilateral act and the other tenants are not even required to agree to it. There are however, significant limitations to the severance powers as they are only applicable between living people. What this implies s that dead people are not able to give notices.

In joint tenancies, whenever one of the parties wants to sell their interests to other parties to the joint tenancy, they can do so as there are no restrictions. In this case, E had approached A with an offer of £80,000 to buy him out of the property. Sadly, however, E passes away soon after. Before passing away she writes a will which shows her intention to severe her joint tenancy. The will is however, not valid as it is not clear as to whether there are witnesses or whether she signed the will. As such, her severance of the joint tenancy is not complete. Additionally, there were also no prior agreements nor communications to sever the joint tenancy. In this case, E`s interests would be survived by the remaining members of the joint tenancy.

Joint tenancies could be severed through express acts, through mutual agreements and even through courses of action that intimate the intentions of severing tenancies. In the Carr v Isard [2006] case, the High Court was tasked with the determination of whether the wills the husband and wife who had passed on had written severed their joint tenancy. It was unclear on who was going to inherit their property. It was held that the wills they had written had not severed the tenancy because there existed no mutual agreements nor express acts and the will by itself was not make up courses of dealings. The will they wrote did not provide sufficient evidence of intentions to sever their joint tenancy.

B wrote a severance letter in which he expressed his wish and desire to no longer wished to be associate with the property. In the case of RE Berkeley Road NW9 [1971], joint tenants lived in the same address and a severance letter was sent out by R expressing interest to severe the joint tenancy. G, the other joint tenant denied ever seeing such a letter. However, in line with section 196 (4) of the Law of Property Act, the court went ahead and determined that the notice had been received and subsequently, the joint tenancy stood severed. Section 196 (4) states that all notices are recognised as having been served sufficiently if they are sent through post in registered letters addressed to the person intended to be served at their place of residence by their names. As such, the severance letter that B wrote is not valid as it had not been sent out through mail and no one got to see it.

As things stand, B, C, are the survivors of the joint tenancy of Salford Greens.

Bibliography

Books

Burrows A, English Private Law (Oxford Principles Of English Law (3rd edn, OXFORD 2013)

Clarke S, and Greer S, Land Law DIRECTIONS (4th edn, OXFORD 2014)

Kidner R, Casebook On Torts (12th edn, OXFORD 2012)

McFarlane B, Hopkins N, and Nield S, Land Law: Text, Cases, And Materials (3rd edn, OXFORD 2015)

Reid K, Zimmermann R, and de Waal M, Comparative Succession Law: Volume I: Testamentary Formalities (OXFORD 2011)

Thompson M, and George M, Thompson's Modern Land Law (6th edn, OXFORD 2017)

Cases

Bernstein v Skyviews & General Ltd

Botham v TSB

Corbett v Hill

Carr v Isard

D`Eyncourt v Gregory

Holland v Hodgson

Leigh v Taylor

RE 88 BERKERLY ROAD

Star Energy Weald Basin Limited and another v Bocardo SA

Waverley Borough Council v Fletcher