WHAT IS LAND?

Question 1

LAND AND TRESPASS TO LAND - LAND

Answer 1

“Land” includes the following:

• Buildings and structures, physical land and intangible rights (s.205(1)(ix))
• Fixtures (s.205(1)(ix) and s.62 LPA)
• Lower airspace (Kelsen v Imperial Tobacco)
• – restricted to that which is necessary for the ordinary use and enjoyment of the land and the structures upon it (Bernstein v Skyviews)
• – 50 feet above ground level is within lower airspace (Woolerton and Wilson v Richard Costain)
• Earth below the land
• – theoretically, this includes everything directly beneath the property (Bocardo SA v Start Energy)
• – includes space under the earth that is accessible from a different property.
• Natural produce unless human effort is required in it’s production (Saunders v Pilcher)

Question 2

Land and Trespass to Land - TRESPASS TO LAND

Answer 2

Committed when a person (or a thing belonging to another person) crosses onto another’s land without permission
- provided that such has occurred, the extent is irrelevant (Kelsen v Imperial Tobacco; Laiqat v Abdul Majad)

An owner may chop off branches etc entering their airspace without permission of the neighbour so long as they don’t have to enter the other’s land to do so and offers them the branches (Lemmon v Webb)

Trespass can be committed by creatures belonging to another person (Ellis v Loftus Iron Co) and cranes (Woolerton and Wilson v Richard Costain)

Aircraft flying at a R height will NOT commit trespass, generally above 500 feet.

Question 3

ITEMS FOUND ON LAND

Answer 3

A person will take items subject to the HIERARCHY OF OWNERSHIP RIGHTS

The True Owner
- a landowner will be the true owner of any unclaimed items on their land at time of purchase (Moffat v Kazana)

The Crown
- will own an item if it falls under the definition of “treasure” in s.1 Treasure Act 1996. (300 years old and metal content)

The Landowner

• will own where:
• – item is attached to/embedded within the land (Waverly BC v Fletcher). Embedded in mud sufficed (South Staffordshire Water v Sharman). Item in a crevice in an unoccupied house did not (Hannah v Peel).
• – landowner manifested an intention to exercise control over the land. Much more likely to be landowner’s if found on private land

The Finder

• subject to the True Owner’s rights
• will weaken claim if they are a Tpasser

Question 4

FIXTURES AND CHATTELS - FIXTURES

Answer 4

Def: tangible property on or attached to land which is considered to be part of the land

• PROPRIETARY property
• constitutes land (s.62(1) LPA 1925)
• Generally attached to the land
• a change in ownership requires a TRANSFER DEED

Will be included in a conveyance to sell land UNLESS expressly excluded (s.62(4) LPA 1925)

Question 5

Fixtures and Chattels - CHATTELS

Answer 5

Def: tangible property on or attached to land which is NOT considered to be part of the land

• PERSONAL property
• does NOT constitute land
• NOT generally attached to the land
• change in ownership only requires PHYSICAL DELIVERY

Will not be included in a conveyance to sell land unless expressly included in it.

Question 6

Fixtures and Chattels - WHICH IS IT?

Answer 6

TWO-STAGE TEST (Holland v Hodgson)

• the method and degree of ANNEXATION
• the OBJECT and PURPOSE test

ANNEXATION
TEST: will be a fixture if AFFIXED to the land, even if the extent is slight (Holland v Hodgson)
- where removal would cause serious damage to the land, likely a fixture (Elitestone v Morris)
- where an item rests on its own weight, likely a chattel (Hulme v Brigham)
- if fixed to the land but is moved from time to time, likely a chattel

OBJECT and PURPOSE
TEST: is the object on/attached to the land (Botham v TSB Bank):
— for the lasting improvement of the land? (fixture), OR
— for its OWN use and enjoyment (chattel)
- OBJ test