Property

• under land law property not resource owned but relationship to resource (control & rights)
• more than one property right can exist at any time
• property right confer upon a person a degree of control over a resource & usually ability to enforce it against people in general
• licence: merely permission & not a proprietary interest
• tenancy: is a proprietary interest

Property: real and personal

• distinction arose from different remedies: return of thing itself, right in rem (real action leads to real remedy) alternatively return of thing itself or damages, right in personam (personal action leads to personal remedy)
• recover land (real action) & land is real property (realty) & all other property is personal property (personalty)
• leasehold property: originally no real action available & leases personalty
• personal actions concerned with moveable property (a chattel)
• once fuller rights introduced for leaseholders & as relates to land (immovable property) known as chattels real & all other chattels pure personalty
• real property (realty) is freehold only & personal property (personalty) can be leasehold land & chattels

Land

• basic definition of land contained in Law of Property Act 1925 (LPA 1925)

  Law of Property Act 1925

  • s.205(1)(ix):defines Land to include: land of any tenure, mines & minerals, buildings or parts of buildings, corporeal hereditaments & incorporeal hereditaments
• hereditament is pre-1926 term for property inherited upon intestacy: corporeal (visible & tangible rights such as building or land) & incorporeal (intangible rights over land)
• licence not hereditaments as is personal permission & not capable of being passed on to heir

Land: airspace

• latin maxim suggests owner of land owns everything up to heavens & down to centre of the earth (cuius est solum eius est usque ad coelum et ad inferos)
• caselaw has developed meaning

  Pickering v Rudd (1815) 4 Camp 219

  • Lord Ellenborough: invasion of airspace above C's land was not trespass
  • unreasonable to impose trespass for example firing a shot gun & flying a balloon over land

  Kelsen v Imperial Tobacco [1957] 2 QB 334

  Facts:

  • claimant (C) seeking an injunction to restrain defendants(D) from placing advertising sign on wall of adjoining premises, on grounds sign projected into airspace above C's shop
  • C had to show he owned the airspace to establish trespass (sign did not amount to nuisance)

  Issue:

  • did the sign amount to trespass of C's airspace?

  Held:

  • McNair J: sign amounted to a trespass of C's airspace & granted injunction

  Bernstein v Skyviews [1978] QB 479

  Facts:

  • C argued D trespassed on his land when taking aerial photos

  Issue:

  • does landowner's rights in airspace extend to an unlimited height?

  Held:

  • Griffiths J: I can find no support in authority for the view that a landowner's rights in the air space above his property extend to an unlimited height
  • correct approach: balance rights of owner to enjoy use of land with rights of general public to use airspace
  • owner's rights restricted to extent of airspace necessary for ordinary use & enjoyment of land & structures, above that height owner has no greater rights than anyone else

Fixtures

• generally chattels are movable items & personalty but chattels attached to land can become fixtures & part of realty
• if contract to purchase a house is not clear issues can arise as to what items are included in the sale (whether chattels or fixtures)
• two tests developed to identify a fixture rules developed to overcome

  Berkley v Poulett [1977] 1 EGLR 86

  Facts:

  • C bought estate from D
  • C claimed following items were fixtures & included in sale: pictures firmly fixed into recesses in the panelling of two rooms, a white marble statue, weighing approximately half a ton & standing on a plinth fixed into the lawn & a sundial resting on a pedestal within the grounds

  Issue:

  • what test should apply in determining if items are fixtures?

  Held:

  • test 1: method & degree of annexation, requires physical annexation to land
  • maxim: whatever is attached to the soil becomes part of it (quicquid plantatur solo, solo cedit) & presumption chattel become fixture but may be rebutted by test 2
  • test 2 : object & purpose of annexation
  • if purpose to enhance realty: object resting on the ground by own weight alone or object lightly affixed & can be removed without causing damage , still may be fixture
  • if purpose of annexation to enable object to be enjoyed in its own right: more likely chattel not fixture
  • pictures not fixture: not part of composite mural & had been put there to be enjoyed as pictures only
  • sundial not fixture: small & had been detached from pedestal many years before sale, so not part of realty
  • statue not fixture: could easily be removed from plinth, owner could choose what to place on plinth
  • plinth was fixture: firmly fixed to ground & siting architecturally important
• caselaw has further developed identification of chattels & fixtures

  Elitestone v Morris [1997] 1 WLR 687

  Facts:

  • C was seeking to recover possession of land (including a bungalow on the land) from D
  • bungalow rested by its own weight on concrete pillars & the pillars were attached to the ground
  • D argued the bungalow formed part of the realty & therefore he had a tenancy & was protected by Rent Act 1977 from being evicted

  Issue:

  • was the bungalow a chattel or part of the realty?

  Held:

  • Lord Lloyd: avoided using term fixture: not usually building itself & tenants' fixtures could be removed
  • 3-fold classification should be adopted, an object brought on to land can be: (a) a chattel, (b) a fixture (realty) or (c) part and parcel of the land itself (realty)
  • bungalow was part of realty: intended to form part of realty as only removed by destruction & lack of attachment not prevent bungalow being realty

  TSB Bank v Botham [1996] EGCS 149

  Facts:

  • C had a mortgage over D's flat & when D defaulted, C sold the flat

  Issue:

  • whether items in the flat were fixtures or chattels?

  Held:

  • indicator: ability to remove without damaging fabric of building
  • fixture: if objectively item intended to be permanent & afford lasting improvement to property
  • ornamental: attachment temporary & no more than necessary for item to be used & enjoyed (chattel)
  • cooker: freestanding & attached by electric flex (chattel) but if split level with hob in surface (fixture)
  • bathroom fittings: including taps, towel rails & soap dishes (fixtures)
  • kitchen units: degree of annexation & intention to effect permanent improvement to kitchen & flat (fixtures)
  • carpets & curtains: insubstantially attached & only to extent required for enjoyment (chattels)
  • white goods: degree annexation slight as can be bought separately & designed to last for limited period, also disconnection will not damage building