General Principles and History
♥ Concerning the rights of private individuals acquiring land (ownership)
♥ Lesser rights that fall short of ownership
♥ Creation of rights:
♥ Historically if you were ousted from your land, you could bring real action on that land
♥ For other types of property, you don’t have the right to recover the land: it’s up to the other party to choose whether to give back the property or provide damages
♥ Real property (‘chattels’) are real, moveable objects
♥ ‘Choses in action’ are immaterial forms of property (shares, patents etc.)
♥ ‘Land’ is defined to include both the physical resource as well as certain rights held in/over it
♥ ‘Land’ in the physical sense is described in terms of the Latin phrase ‘whoever owns the soil owns it up to the sky and down to the depths’
o Edwards v Lee’s Administrator 1936: it was a trespass to enter part of a cave lying under a neighbour’s land
o Bocardo SA v Star Energy 2011: the well was far below the land: only as far as until pressure/temperature render the concept of ownership absurd
♥ Exceptions to ownership below/above the surface:
o Hydrocarbons underground – e.g. gold must go to the Crown
o Can’t apply the ‘usque ad coelum’ (‘up to the sky’) term because of air travel and the advancement of technology
o Berstein v Skyways & General Ltd 1978: D took photos of houses from above and tried to sell the pictures; C said it was a trespass. They need to balance the rights of the owner, scientific development etc. ‘[S]uch height as is necessary for the ordinary use and enjoyment of [one’s] land and the structures upon it.’
o Fixtures: some things may become part of a land if they are attached to it (e.g. chairs that are nailed to floors). They lose their status as personal property and become land. If you buy land and they remove the chattels attached, was it part of the contract or not? When people died they used to leave their real property to one person and personal property to another. If something is attached to the land, the burden of proof is on the party claiming it’s a chattel. If it’s not attached to the land, the burden is on the party claiming it’s a fixture.
o D’Eyncourt v Gregory 1866: concerned a famous manor, built by Gregory and expensively furnished with statues. They weren’t attached but simply weighed down themselves. Gregory left his real property to one person and personal to another; which did the statues belong to? They accepted the burden of proof was on the party claiming it was a fixture. The courts looked at the purpose of the item’s presence; were they there to be enjoyed or was it meant to be a lasting improvement to the land? Here, the statues were held to be part of the architectural design of the house.
♥ Doctrine of Estates:
o After the Norman Conquest of 1066, the Crown acquired the ultimate title to all land in England and Wales
o Others can hold no more than ‘estates’ in the land
o Crown would give land for services
o Person who got the land would also grant smaller portions of his land for services to him
o Answer of the problem of the Crown owning land was found in the Doctrine of Estates: people could have an estate ownership
o Estates confer a right to possess land for some period of time
o Estates represent ‘land for a time’
o Types of estate:
♣ Freehold: (the period is uncertain/indeterminate)
• Fee simple: last as long as there were heirs of the present estate owner
o Closest to ownership
• Fee tail: lasts as long as there are any lineal descendants (the oldest son/daughter) of the original grantee (person who was originally given the land)
o Since the Trusts of Land and Appointment of Trustees Act 1996, it is no longer possible to create a Fee Tai
• Life estate
o Can’t be inherited
o Gives you the right to enjoy land for your lifetime
o When you die, the land is not yours
♣ Leasehold:
• Duration fixed/capable of being fixed
o An estate can be made ‘conditional’/’determinable’
o This terminates prematurely in certain circumstances (not important)
o An ‘absolute’ fee simple is one that cannot so end
o An estate held ‘in possession’ confers present rights to enjoy the land rather than waiting for someone else’s estate to end first
o An estate held ‘in reversion’ confers on a third party a present right to future enjoyment
o An estate held ‘in remainder’ confers on the grantor a present right to future enjoyment
♥ Lesser rights that fall short of ownership
♥ Creation of rights:
♥ Historically if you were ousted from your land, you could bring real action on that land
♥ For other types of property, you don’t have the right to recover the land: it’s up to the other party to choose whether to give back the property or provide damages
♥ Real property (‘chattels’) are real, moveable objects
♥ ‘Choses in action’ are immaterial forms of property (shares, patents etc.)
♥ ‘Land’ is defined to include both the physical resource as well as certain rights held in/over it
♥ ‘Land’ in the physical sense is described in terms of the Latin phrase ‘whoever owns the soil owns it up to the sky and down to the depths’
o Edwards v Lee’s Administrator 1936: it was a trespass to enter part of a cave lying under a neighbour’s land
o Bocardo SA v Star Energy 2011: the well was far below the land: only as far as until pressure/temperature render the concept of ownership absurd
♥ Exceptions to ownership below/above the surface:
o Hydrocarbons underground – e.g. gold must go to the Crown
o Can’t apply the ‘usque ad coelum’ (‘up to the sky’) term because of air travel and the advancement of technology
o Berstein v Skyways & General Ltd 1978: D took photos of houses from above and tried to sell the pictures; C said it was a trespass. They need to balance the rights of the owner, scientific development etc. ‘[S]uch height as is necessary for the ordinary use and enjoyment of [one’s] land and the structures upon it.’
o Fixtures: some things may become part of a land if they are attached to it (e.g. chairs that are nailed to floors). They lose their status as personal property and become land. If you buy land and they remove the chattels attached, was it part of the contract or not? When people died they used to leave their real property to one person and personal property to another. If something is attached to the land, the burden of proof is on the party claiming it’s a chattel. If it’s not attached to the land, the burden is on the party claiming it’s a fixture.
o D’Eyncourt v Gregory 1866: concerned a famous manor, built by Gregory and expensively furnished with statues. They weren’t attached but simply weighed down themselves. Gregory left his real property to one person and personal to another; which did the statues belong to? They accepted the burden of proof was on the party claiming it was a fixture. The courts looked at the purpose of the item’s presence; were they there to be enjoyed or was it meant to be a lasting improvement to the land? Here, the statues were held to be part of the architectural design of the house.
♥ Doctrine of Estates:
o After the Norman Conquest of 1066, the Crown acquired the ultimate title to all land in England and Wales
o Others can hold no more than ‘estates’ in the land
o Crown would give land for services
o Person who got the land would also grant smaller portions of his land for services to him
o Answer of the problem of the Crown owning land was found in the Doctrine of Estates: people could have an estate ownership
o Estates confer a right to possess land for some period of time
o Estates represent ‘land for a time’
o Types of estate:
♣ Freehold: (the period is uncertain/indeterminate)
• Fee simple: last as long as there were heirs of the present estate owner
o Closest to ownership
• Fee tail: lasts as long as there are any lineal descendants (the oldest son/daughter) of the original grantee (person who was originally given the land)
o Since the Trusts of Land and Appointment of Trustees Act 1996, it is no longer possible to create a Fee Tai
• Life estate
o Can’t be inherited
o Gives you the right to enjoy land for your lifetime
o When you die, the land is not yours
♣ Leasehold:
• Duration fixed/capable of being fixed
o An estate can be made ‘conditional’/’determinable’
o This terminates prematurely in certain circumstances (not important)
o An ‘absolute’ fee simple is one that cannot so end
o An estate held ‘in possession’ confers present rights to enjoy the land rather than waiting for someone else’s estate to end first
o An estate held ‘in reversion’ confers on a third party a present right to future enjoyment
o An estate held ‘in remainder’ confers on the grantor a present right to future enjoyment
Land law:
Land law is concerned with land/rights in or over land/processes whereby rights and interests are created. Rights are different from mere contractual rights because they are capable of attaching themselves to the land rather than between the original parties. This is the proprietary nature of land law rights, compared to the personal nature of contractual obligations.