LAND NOTES
TABLE OF CONTENTS
L AW
LAND
OVERVIEW & INTRODUCTION TO LAND LAW: P.2
ADVERSE POSSESSION: P.8
LAND REGISTRATION PART 1: P.17
LAND REGISTRATION PART 2: P.25
CO-OWNERSHIP, TRUSTS OF LAND AND ESTOPPEL: P.29
MORTGAGES: P.39
CO-OWNERSHIP & TRUSTS OF LAND: 48
EASEMENTS AND FREEHOLD COVENANTS: P.57
LEASES & LICENSES P.67
PAGE !1 OF 73
!
,LAND NOTES OVERVIEW AND INTRODUCTION TO LAND LAW
• Special characteristics of land which pose challenge for regulating use/ownership: immovable(real property),
unique (hence contracts are specifically enforceable), in short supply
• Domestic property is of particular social importance: major lifetime asset
• Private property wealth in GB 2008= £3.5 trillion- 60% of all accumulated private wealth
• Also protected as a human right: Art 8: ‘right to respect… for his home”
• When own land, actually a tenant of Crown - ‘doctrine of estates’
• You just own an ‘estate in land’- comes from feudal system
• We do not recognise dominium- ownership is relative, not absolute (unlike on continent)
• Allows people have simultaneous rights over land but means tension between protecting all individual rights &
ability to freely alienate land
• Much of land law concerned with balancing these aims (especially through land registration)
• Cooke: registration makes land marketable, but in reality ‘appalling potential for oppression’. The more
complete, less protection to those who can’t use it
• Therefore, another recurring tension is certainty v justice
• Property law must delineate between property right (in rem) & personal/contractual right (in personam).
• Gray & Gray: describe property as power relationship between person and valued resource
• Hallmark of property is its ability to exclude others- many argue this makes English property law a deeply
conservative institution
• Linked to “recognition of white, English men’s property rights” (O’Sullivan)
DEFINITION OF LAND
• Law of Property Act 1925 s.205(1)(ix)
• Land includes land of any tenure & mines & minerals whether or not held apart from the surface, buildings or
parts of buildings… and other corporeal hereditament; 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
• Therefore includes tangible parts and intangible parts!
THE PHYSICAL EXTENT OF LAND
a) Horizontally: normally determined by fences/other physical features: plans with conveyance etc may provide
evidence- most disputes where boundaries are organic…
• Ad medium filium: Roman law rule: if river/stream along boundary then boundary on middle line
• ‘Hedge oval ditch’ rule: boundary on edge of ditch furthest from hedge: Parmar v Upton 15 confirmed/
reiterated
b) Vertically: starting point was a Roman jurist: ‘own everything as far as the heavens and down as the
underworld’. Qualified in modern context (discussed in Bocardo v Star Energy UK 2010)
i) Up to heavens? No. Right to control/enjoy airspace not unlimited: Civil Aviation Act 1982 s.76(1):
innocent overflight by aircraft not actionable trespass/nuisance if at a reasonable height given circumstance
• regulations specify minimum flying height of 1000 feet above built up area
• May affect HRs of those living in flight path (Hatton v UK 2003): argued increase in night flights
infringes Art 8: court agreed but said proportionate
• Bernstein v Skyviews Ltd 1978 owners rights restricted to such height as it necessary for ordinary use and
enjoyment of land and structures upon it
• Actionable trespass if lower airspace invaded e.g Anchor Brewhouse Developments v Berkley
Homes(crane), Laiqat v Majid (ventilation pipe)
ii) Down to underworld?
• Grigsby v Melville 74: Land prima facie includes subjacent cellars
• Coal Industry Act 94 gives state exclusive right license landowners to mine coal from under land
• Petroleum Act 98 oil & petrol under land belongs to state: can license you
• Bocardo v Star Energy 10: right to soil beneath land limited to depth you could use/make use of it
• Note: things buried in land prime facie belongs to land owner but Treasure Act 1996 s.1 & s.4 if find 2/
more coins 300 years old & of at least 10% valuable metal then belong to Crown
PAGE 2! OF 73
!
, LAND NOTES
BUILDINGS, FIXTURES & CHATTELS
• LPA 1925 s.62(1): conveyance of land includes all buildings, erections, fixtures, commons, hedges, ditches,
fences, ways, water-courses, liberties, privileges, easements, rights & advantages
• Buildings (& other erections) which are part and parcel of land pass with it upon conveyance
• ‘Superficies solo credit’: the surface yields to the land
• Elitestone Ltd v Morris: Lord Lloyd said avoid traditional fixtures/chattels distinction, instead follow
division in Woodall: chattel, fixture or ‘part & parcel’ of land
• Thus, in Elitestone, did bungalow on freestanding concrete pillars become part & parcel? Yes: said it not
intended to be moved: immoveable
• Chelsea Yacht & Boat Co v Pope 2000 permanently moored houseboat. For occupier to be tenant, boat
must be part of land. Held no - was moored to jetty & tied to bottom of river but moveable & therefore
chattel/not part & parcel
• Mew v Tristmire Ltd 11: houseboat chattel
• Spielplatz Ltd v Pearson 15: Bungalow on naturist camp. Held a building because immovable: irrelevant that
both parties thought chattel
• Fixtures: whatever is attached to the land accedes to land, if it is not attached then is chattel
• Twin test from case law: degree of annexation & purpose of annexation
• Degree seems lay down presumption which can be rebutted by purpose
• Holland v Hodgson 1872 loom in mill nailed to floor - said nothing to suggest not fixtures
• but if thing fixed with minimum degree of annexation necessary for its enjoyment, remains chattel
• Leigh v Taylor 1902 tapestries fastened to walls & degree of annexation but purpose was just so they could
be displayed hence still chattels
• Hulme v Brigham 43: printing presses attached to drive mechanisms which were attached to walls. Held
chattels because only fastened in order to use (seems to contradict Holland)
• Berkley v Poulett 77: “if object cannot be removed w.o serious damage to some part of the realty, the case
for its having become a fixture is strong”
• If thing rests on own weight it may become fixture if purpose is improvement of realty- especially where
objects part of original design
• Holland v Hodgson: Blackburn J gave e.g of pile of stones as chattels but if made dry stone wall then
fixture: purpose!
• Hamp v Bygrave 83: free standing heavy stone ornaments fixtures because purpose was enhancing realty
• D’Eyncourt v Gregory 76 free standing heavy marble Lions & tapestries, difficult remove. Fixtures;
enhancing land rather than enjoying as chattels
• Re Whaley 1908 mock up Elizabethan house tapestries/portraits held fixtures. Integral to design &
unmovable w.o destroying concept
• Tower Hamlets LBC v Bromley LBC 15 statue chattel because ‘entire object in itself ’ & could have been
enjoyed in ‘Cologne or Melbourne’.
• More examples:
• Botham v TSB Bank 96: bathroom fittings (e.g rails) fixtures because necessary for bathroom, light fittings/
integrated kitchen appliances not!
• Court said take into acc no. of factors:
• if object part of overall design of building
• movability of object - where moved regularly more likely chattel
• lifespan of object: where limited - chattel
• damage caused to land if moved
• type of person who installed - where builder, more likely a fixture
• Palumberi v Palumberi venetian blinds chattels
• Smith v City Petroleum Co petrol pumps fixtures
• Melluish v BMI (no 3) central heating, elevators, video/alarm system & swimming pool filtration plant
fixtures
REMOVEABILITY
• Chattel can be removed at any time by its owner (subject to contracts), fixture irremovable except by freehold
owner (in principle)
PAGE 3! OF 73
!
TABLE OF CONTENTS
L AW
LAND
OVERVIEW & INTRODUCTION TO LAND LAW: P.2
ADVERSE POSSESSION: P.8
LAND REGISTRATION PART 1: P.17
LAND REGISTRATION PART 2: P.25
CO-OWNERSHIP, TRUSTS OF LAND AND ESTOPPEL: P.29
MORTGAGES: P.39
CO-OWNERSHIP & TRUSTS OF LAND: 48
EASEMENTS AND FREEHOLD COVENANTS: P.57
LEASES & LICENSES P.67
PAGE !1 OF 73
!
,LAND NOTES OVERVIEW AND INTRODUCTION TO LAND LAW
• Special characteristics of land which pose challenge for regulating use/ownership: immovable(real property),
unique (hence contracts are specifically enforceable), in short supply
• Domestic property is of particular social importance: major lifetime asset
• Private property wealth in GB 2008= £3.5 trillion- 60% of all accumulated private wealth
• Also protected as a human right: Art 8: ‘right to respect… for his home”
• When own land, actually a tenant of Crown - ‘doctrine of estates’
• You just own an ‘estate in land’- comes from feudal system
• We do not recognise dominium- ownership is relative, not absolute (unlike on continent)
• Allows people have simultaneous rights over land but means tension between protecting all individual rights &
ability to freely alienate land
• Much of land law concerned with balancing these aims (especially through land registration)
• Cooke: registration makes land marketable, but in reality ‘appalling potential for oppression’. The more
complete, less protection to those who can’t use it
• Therefore, another recurring tension is certainty v justice
• Property law must delineate between property right (in rem) & personal/contractual right (in personam).
• Gray & Gray: describe property as power relationship between person and valued resource
• Hallmark of property is its ability to exclude others- many argue this makes English property law a deeply
conservative institution
• Linked to “recognition of white, English men’s property rights” (O’Sullivan)
DEFINITION OF LAND
• Law of Property Act 1925 s.205(1)(ix)
• Land includes land of any tenure & mines & minerals whether or not held apart from the surface, buildings or
parts of buildings… and other corporeal hereditament; 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
• Therefore includes tangible parts and intangible parts!
THE PHYSICAL EXTENT OF LAND
a) Horizontally: normally determined by fences/other physical features: plans with conveyance etc may provide
evidence- most disputes where boundaries are organic…
• Ad medium filium: Roman law rule: if river/stream along boundary then boundary on middle line
• ‘Hedge oval ditch’ rule: boundary on edge of ditch furthest from hedge: Parmar v Upton 15 confirmed/
reiterated
b) Vertically: starting point was a Roman jurist: ‘own everything as far as the heavens and down as the
underworld’. Qualified in modern context (discussed in Bocardo v Star Energy UK 2010)
i) Up to heavens? No. Right to control/enjoy airspace not unlimited: Civil Aviation Act 1982 s.76(1):
innocent overflight by aircraft not actionable trespass/nuisance if at a reasonable height given circumstance
• regulations specify minimum flying height of 1000 feet above built up area
• May affect HRs of those living in flight path (Hatton v UK 2003): argued increase in night flights
infringes Art 8: court agreed but said proportionate
• Bernstein v Skyviews Ltd 1978 owners rights restricted to such height as it necessary for ordinary use and
enjoyment of land and structures upon it
• Actionable trespass if lower airspace invaded e.g Anchor Brewhouse Developments v Berkley
Homes(crane), Laiqat v Majid (ventilation pipe)
ii) Down to underworld?
• Grigsby v Melville 74: Land prima facie includes subjacent cellars
• Coal Industry Act 94 gives state exclusive right license landowners to mine coal from under land
• Petroleum Act 98 oil & petrol under land belongs to state: can license you
• Bocardo v Star Energy 10: right to soil beneath land limited to depth you could use/make use of it
• Note: things buried in land prime facie belongs to land owner but Treasure Act 1996 s.1 & s.4 if find 2/
more coins 300 years old & of at least 10% valuable metal then belong to Crown
PAGE 2! OF 73
!
, LAND NOTES
BUILDINGS, FIXTURES & CHATTELS
• LPA 1925 s.62(1): conveyance of land includes all buildings, erections, fixtures, commons, hedges, ditches,
fences, ways, water-courses, liberties, privileges, easements, rights & advantages
• Buildings (& other erections) which are part and parcel of land pass with it upon conveyance
• ‘Superficies solo credit’: the surface yields to the land
• Elitestone Ltd v Morris: Lord Lloyd said avoid traditional fixtures/chattels distinction, instead follow
division in Woodall: chattel, fixture or ‘part & parcel’ of land
• Thus, in Elitestone, did bungalow on freestanding concrete pillars become part & parcel? Yes: said it not
intended to be moved: immoveable
• Chelsea Yacht & Boat Co v Pope 2000 permanently moored houseboat. For occupier to be tenant, boat
must be part of land. Held no - was moored to jetty & tied to bottom of river but moveable & therefore
chattel/not part & parcel
• Mew v Tristmire Ltd 11: houseboat chattel
• Spielplatz Ltd v Pearson 15: Bungalow on naturist camp. Held a building because immovable: irrelevant that
both parties thought chattel
• Fixtures: whatever is attached to the land accedes to land, if it is not attached then is chattel
• Twin test from case law: degree of annexation & purpose of annexation
• Degree seems lay down presumption which can be rebutted by purpose
• Holland v Hodgson 1872 loom in mill nailed to floor - said nothing to suggest not fixtures
• but if thing fixed with minimum degree of annexation necessary for its enjoyment, remains chattel
• Leigh v Taylor 1902 tapestries fastened to walls & degree of annexation but purpose was just so they could
be displayed hence still chattels
• Hulme v Brigham 43: printing presses attached to drive mechanisms which were attached to walls. Held
chattels because only fastened in order to use (seems to contradict Holland)
• Berkley v Poulett 77: “if object cannot be removed w.o serious damage to some part of the realty, the case
for its having become a fixture is strong”
• If thing rests on own weight it may become fixture if purpose is improvement of realty- especially where
objects part of original design
• Holland v Hodgson: Blackburn J gave e.g of pile of stones as chattels but if made dry stone wall then
fixture: purpose!
• Hamp v Bygrave 83: free standing heavy stone ornaments fixtures because purpose was enhancing realty
• D’Eyncourt v Gregory 76 free standing heavy marble Lions & tapestries, difficult remove. Fixtures;
enhancing land rather than enjoying as chattels
• Re Whaley 1908 mock up Elizabethan house tapestries/portraits held fixtures. Integral to design &
unmovable w.o destroying concept
• Tower Hamlets LBC v Bromley LBC 15 statue chattel because ‘entire object in itself ’ & could have been
enjoyed in ‘Cologne or Melbourne’.
• More examples:
• Botham v TSB Bank 96: bathroom fittings (e.g rails) fixtures because necessary for bathroom, light fittings/
integrated kitchen appliances not!
• Court said take into acc no. of factors:
• if object part of overall design of building
• movability of object - where moved regularly more likely chattel
• lifespan of object: where limited - chattel
• damage caused to land if moved
• type of person who installed - where builder, more likely a fixture
• Palumberi v Palumberi venetian blinds chattels
• Smith v City Petroleum Co petrol pumps fixtures
• Melluish v BMI (no 3) central heating, elevators, video/alarm system & swimming pool filtration plant
fixtures
REMOVEABILITY
• Chattel can be removed at any time by its owner (subject to contracts), fixture irremovable except by freehold
owner (in principle)
PAGE 3! OF 73
!
