Land Law Lawcards 2012-2013

Routledge

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136595615
• Edition: 8
• Topic: Droit
• Subtopic: Théorie et pratique du droit

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Titles in the Series: Commercial Law; Company Law; Constitutional Law; Contract Law; Criminal Law; Employment Law; English Legal System; European Union Law; Evidence; Equity and Trusts; Family Law; Human Rights; Intellectual Property Law; Jurisprudence; Land Law; Tort Law

1

Fundamental concepts

Definitions of Land	■
Concept of Property	■
Test for fixture or chattel	■
Concept of tenure and estates	■
Concept of rights, estates and interests	■
Concept of notice	■
Concept of fee simple absolute in possession	■
Requirements for a valid contract for sale	■
Requirements for a valid conveyance of land	■

STATUTORY DEFINITIONS OF LAND

‘Land’ includes land of any tenure and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings … and other corporeal hereditaments; also a manor, an advowson, and a rent and other corporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land … (s 205(1)(ix) of the LPA 1925, amended by Sched 4 to the TOLATA 1996).

‘Land includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land’ (Sched 1 to the Interpretation Act 1978).

■ Land includes–

(a) buildings and other structures

(b) land covered with water, and

(c) mines and minerals, whether or not held with the surface

(Section 132(1) of the LRA 2002).

■ ‘Hereditament’ refers to real property capable of being inherited.

Traditionally, ownership of land has been held to be ownership of a space from the highest heavens down to the centre of the earth, but this view has been modified by the requirements of modern life (see, for example, the CAA 1982; Treasure Act 1996; Wollerton and Wilson Ltd v Richard Costain Ltd [1970] – liability for overhanging crane jib; Bernstein v Skyviews and General Ltd [1978] – no liability in trespass for aircraft flying over land at a reasonable height; Laiqat v Majid [2005] – liability for extraction duct that encroached onto neighbouring land by 750 mm).

PROBLEMS OF PROPERTY ARISING WHERE CHATTELS ARE AFFIXED TO LAND

Problems may emerge from interpretation of the old maxim: ‘Whatever is annexed to the soil becomes a part thereof.’ Section 62(1) of the LPA 1925 tells us that all fixtures are conveyed with the land, unless there is a contrary intention expressed in the conveyance (s 62(4)). How do we decide whether or not an item is a fixture? (See figure on p. 4.)

◗ Holland v Hodgson [1872]

The test for a fixture or chattel will depend upon the degree and purpose of annexation. The question is whether the chattel has been fixed to the land for better enjoyment of the chattel, or to enhance the use of the land.

Facts

Upon repossession of a factory, the mortgagee claimed ownership of some spinning looms which were bolted to the floor.

Held

The looms were fixtures and formed part of the land. Articles resting on their own weight are not regarded as part of the land unless a contrary intention can be shown and articles attached to the land are to be regarded as part of the land unless it can be shown that they were intended to constitute a chattel.

Fixtures may be removed lawfully from land in the cases of:

■ Mortgagor and mortgagee – where land has been mortgaged, fixtures may be included in the mortgage (TSB Bank v Botham [1996]).

■ Landlord and tenant – in general, the landlord is entitled to fixtures attached by the tenant. There are exceptions in cases of agricultural fixtures, trade fixtures (which may be removed before but not after the end of tenancy), and ornamental fixtures (which can be removed without causing substantial injury to property).

There is a common law duty to make good any damage caused by removal of tenants’ fixtures and to leave the premises in reasonable condition. Liability at common law is on the person who removed the fixtures (Mancetter Developments v Garmanson [1986]).

■ Vendor and purchaser – under a conveyance, fixtures pass to a purchaser without express mention (s 62(1) of the LPA 1925), unless there is a contrary intention expressed in the conveyance (s 62(4)).

◗ D’EYNCOURT V GREGORY [1886]

Where an object is annexed to enhance the land rather than for its enjoyment, the object will constitute a fixture.

Facts

A dispute arose over a number of items that the purchaser claimed were fixtures and should remain with the property. The items included:

• Stone statues resting on their own weight

• Tapestries fixed to the walls, and

• Vases

Held

The items were fixtures on the basis that they constituted part of the architectural design of the house. The annexation was to enhance the land itself rather than to enjoy the chattel as an individual object.

CONCEPT OF TENURE AND ESTATES

Tenure is concerned with the conditions upon which land is held. It answers the question: how is land held? Today, all land is held by the Crown, directly or indirectly. Estate is concerned with the length of time for which a tenant may hold land. It answers the question: for how long is land held?

CONCEPTS OF RIGHTS, ESTATES AND INTERESTS

Generally speaking, when you hold an estate in the land you have ‘ownership’ of the land. If you have an interest in land you have an interest (for example, a right of way) in or over land owned by somebody else.

Legal rights are rights in rem, binding ‘the entire world’. Equitable rights can be proprietary or in personam. They bind all persons other than the bona fide purchaser of a legal estate without notice of such (equitable) rights.

CONCEPT OF ‘PURCHASER WITHOUT NOTICE’

An equitable interest may be enforced against all persons, except a bona fide purchaser, for value of the legal estate, who has taken without notice of the existence of that interest, and against one who claims through him:

■ ‘Bona fide’ ...