EG Property Handbook

Geoff Parsons

• Publisher: Estates Gazette
• Year: 2019
• eBook ISBN: 9781135325299
• Topic: Law
• Subtopic: Construction & Architectural Engineering
• Index: Law

This book has been written to meet the needs of those who work with property or property-related matters, but without any formal training, and describes how those in the property industry go about their work. The principal theme in the book is realty or landed property, including buildings. Other types of property are touched upon but only in the context of real estate.

The book is intended to be an introduction for those whose involvement in property requires them to understand or have insights into the ways in which property functions and processes are carried out. It will also help in understanding common expressions and jargon.

Part 1
Land and Ownership

1
Land, Air and Sea

Aim

To explore the concepts of land, air and sea and their physical attributes and properties

Objectives

• to describe “land” (including water and air) as a legal concept
• to establish the extent of land at the surface, below ground and above the surface
• to describe the rules of law for determining the physical boundaries of land
• to establish the nature and physical properties of land, air, and fresh water
• to determine what is underground, eg minerals, other substances and hot phenomena
• to establish in relation to land the status of wild creatures, plants and other living things
• to describe the attributes of the sea and its plants and creatures

Introduction

For an isolated family in a pre-history economy, ie mainly hunting and cultivation for immediate living needs, land should be sufficient to provide space for all their needs, particularly for shelter and cultivation. If not, the family would move on to settle elsewhere. As the population grows land is less likely to satisfy their requirements and rights and obligations in respect of land are in the first instance desired and eventually realised by agreement or by force. In effect, the first steps to ownership in respect of land were being taken.

In common parlance, most people buy or rent a factory, a house or an office, and so on. In practice, they usually acquire a freehold estate or take or acquire a leasehold estate in land. Each estate will have unique and particular characteristics.

Thus, land ownership is the ownership of a complex bundle of rights and obligations. The bundle reflects the extremely complex society in the UK. However, land underpins all that is done. In the laws which apply to England and Wales land (not an estate, for the time being) has certain physical attributes which provide a foundation for the ownership of estates and other interests. (The laws applicable in Scotland are somewhat different.)

The air over land and water or under land also has physical characteristics which are dealt with below. Finally, the sea is somewhat different again, as will be seen later. In almost all instances of the use of the term land in this chapter refers to land not an estate in land.

The chapter begins with the idea that land is not owned. It deals with its natural characteristics and with those of air and water from the same perspective; but treating the sea somewhat differently. However, some points will be covered as if land is owned — but in a way which is obvious. Ownership of freeholds, leaseholds and certain rights concerning land are covered in chapters 2 to 4.

Land is incapable of ownership

Apart from one important exception land cannot be owned under the law covering England and Wales, ie English law. This is of little practical importance except when the owner of the freehold estate in a parcel of land dies without a will and there is no one to benefit under the rules of intestacy. In these circumstances the land “reverts” to Crown under escheat. (The “reversion” recognises the feudal origins of the freehold being granted to a baron by William the Conqueror or a later monarch.)

Crown’s ownership of land

Thus, there is an exception to the general rule that land is not owned under English law; the Crown owns all land. Conceptually, this may be regarded as an example of what is known as “alloidal” tenure.

Alloidal land

An exploration (elsewhere) into the concept of alloidal ownership may be of interest. For the moment, it is sufficient to note that in some parts of the world land is owned, but usually by a large group of people. Indeed, it is conceivable that alloidal ownership existed in England in the Dark Ages when extended families occupied and cultivated small areas of land. Even today in the Orkney Islands of Scotland udal land tenure is said to be alloidal in nature. (It was introduced by the Vikings.)

Characteristics of land

Box 1.1 gives the characteristics of land. The principal characteristic is its support of life, ie its capacity to provide for shelter and for food production.

It could be argued that land satisfies human needs for shelter, food and water and, possibly, others.

Land’s physical extent

What then is land? Conceptually, physical land extends physically from the centre of the earth to the heights of the heavens — somewhat like a misshapen cone, the sides of which pass through the boundaries of the land. In describing the concept of land in English law nothing has been (or should be) left out of Box 1.2, which shows the extent of land in English law. For emphasis, almost invariably, buildings are part of the land.

It may be noted that in some societies land has been conceptually separated from buildings, eg in parts of the Peoples’ Republic of China, but this may be straying, in part, into the issues of the role of the state and of ownership. So here it should be emphasised that the list relates to the physical content of land.

Box 1.1 Characteristics of physical land, air and fresh water

Tangible nature	land and the buildings and structures put upon it have a tangible reality also, physical air and water are tangible similarly, animals and plants are tangible	estates and interests which man attaches to the land and buildings are conceptual and intangible similarly, rights in water and air are conceptual and intangible also, rights in plants and animals are man-thought and conceptual and intangible
Permanent nature	land is permanent and is virtually indestructible	it may be “destroyed” by the action of the sea when perm...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Dedication
• Preface
• Acknowledgments
• Author’s Note
• Part 1 Land and Ownership
• Part 2 Property Markets
• Part 3 Professional and Contractual Services
• Part 4 Development of Settlements
• Part 5 Development Process
• Part 6 Property and Facilities Management
• Part 7 Property and Finance
• Part 8 Property Taxation
• Part 9 Property and Government
• Part 10 Settling Disputes
• Part 11 Appendices
• Part 12 Indexes