Land law, seminar one. PDF

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An introduction to land law.
Seminar one of the land law module, complete with full answers....

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SEMINAR ONE – FOUNDATIONS OF LAND LAW Learning objectives By the end of this seminar, you will be able to: (i) Identify the statutory definition of land, and the limitations with this definition. (ii) Identify and apply various forms of third-party interests to relevant facts. (iii) Critique the extent of legal ownership and how multiple claims to land are balanced. (iv) Provide reasoned arguments for which personal items become part of land. (iv) Argue against, or defend, certain concepts of property.

Required Reading: Statutes Law of Property Act 1925: ss. 1, 2, 27, 205 (1) (ix), 198, 199. Trustee Act 1925: s 34(2). Cases (these are just a couple of cases on this area – please feel free to engage with more) Extent of ownership: Bernstein of Leigh v. Skyviews & General Ltd [1978] QB 479, CA, Kelsen v Imperial Tobacco Co. [1957] 2 W.L.R. 1007 Fixtures: Botham v TSB Bank (1996) 7 P & C R D 1 Trespass: Waverly Borough Council v Fletcher [1995] 4 All ER 756 Book chapter (scanned and provided on blackboard) Lorna Fox O’Mahony, Dave Cowan, and Neil Cobb, Great Debates in Property Law (Palgrave Macmillan, 2012) 1 – 20. Simon Douglas and Ben McFarlane, ‘Defining Property Rights’, in James Penner and Henry E Smith (eds), Philosophical Foundations of Property Law (Oxford University press 2013) 219 – 243. (This will be challenging at this stage of the course – try to get a sense of the themes rather than learning all the law in the piece). Module Handbook: Pages 15 – 21, 47 – 49.

Textbooks: Barbara Bogusz and Roger Sexton, Land Law: Cases, Texts, and Materials (6th edn, Oxford University Press 2019) 3 – 19. and/or Mark Thompson and Martin George, Thompson's Modern Land Law (7th edn, Oxford

University Press 2019) 1 – 27.

Question One How can you best prepare for Land Law? What are your lecturers looking for in coursework?      

By reading the module handbook & how to do well in land law. Do work and reading as it arises Asking “why” and “how” about everything you are reading Further reading Precise language – be firm with your viewpoint. Introductions and conclusions

Cases that aren’t extremely relevant but show that you have done further reading – just a reference. Give yourself at least two days before submitting a final draft – time to proofread. Identify reasons behind the argument… reasoning behind why someone has made a view, not just their view.  Not just why the court / parliament / academic arguing this, but do you agree with it? Does a dissenting opinion have better weight? To what extent? Basic study tips  Make notes as going through lectures.  Then go back over the notes in a short period of time – the evening or day after.  Come to prep for seminars: o Start by going back over lecture notes o Then suggested textbook reading o Then cases o Articles after o Make notes as going through articles o Go back over seminar notes the day after o Questions that you have for the seminar

Question Two To what extent do the words ‘land’ and ‘property’ have a stable definition? Ensure your answer covers:    

Statutory definitions. Conceptual understandings of property. Reforms enacted in the 1925 legislation. Reasons why ‘land’ and ‘property’ do/do not have stable definitions.

Statutory definitions:

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“Land” - s.205(1)(ix) Law of Property Act 1925 – “includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or part of buildings (whether the division is horizontal, vertical or in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, derived from land”. “Property” – s.205(1)(xx) Law of Property Act 1925 – “includes any thing in action, and any interest in real or personal property.”

Easement – a right to do something on someone else’s land. Nonpossessory interest in land. A right to park a car on neighbour’s land Flexibility is overall a good thing. Most people would agree that flexibility in the broad definitions is more of a positive than a negative.

Conceptual understandings of property:  Exclusion –  Rationality – in property everything must be rational, needs to make sense, courts must have to be able to apply the law. Especially within property law because has financial implications  or exclusion  Alienability – key purpose of 1925 legislation  Bundle of rights theory of property – applies to real and personal property – to say that you are the owner of property, is to say that you have various rights over the property. Aka right of exclusion, or alienability. To own, is to have the greatest bundle of rights over the land. Good + important theory = helps to conceptualise theory. Property is not just the physical thing, it is the right to the physical thing. Property law is about peoples relationship to those things (real and personal property). Best way to conceptualise property.  Is land most important as a commercial property or ? Most important as a financial asset or a place to live? DO they (courts) favour home owners or those who use property as a financial commodity?   

Chattels – personal objects, even though they may appear in relation to the property. Fixtures – part of the property, move with transfer. How do we determine what is what? There is a two-part test to identify if something is a fixture or not – Holland v Hodgson. o Degree of annexation  How firmly, permanently or irreversibly fixed an object appears to be to the land. If so = more likely to be a fixture.  If it is no further attached to the land than it is by its own weight = mere chattel. o Purpose of annexation  The preferred test. When the tests of degree and purpose clash, purpose will take priority - Berkley v Poulett.

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Is the item intended to improve the land or is attached to the land for the object’s better use? This is known as objectively understood purpose – Holland v Hodgson. Was the chattel intended to become part of the land as part of an architectural scheme? – D’Eymcourt v Gregory (1866) It will be a chattel if the annexation is no more than necessary for the enjoyment of the object – i.e. Tapestries as in Leigh v Taylor.

 Annexation means attached – in reference to the property, of course.  Take into account case dates. In the modern day, a lesser degree of annexation could be required for something to amount to a fixture. Reforms enacted in the 1925 legislation:  1925 refers to five pieces of legislation  To simplify conveyancing and the purchase of property  Before 1925, it was messy to by land… people were unaware of potential equitable interests that came along with purchase of the property.  So what reforms? o S1 LPA 1925 – made a reduction in legal interests and estates, sweeping all else into equity o Extension of overreaching o Registration of Land Charges – Land Charges Act 1972 

1925 legislation did to simplify… o Limited number of legal owners to 4 people, before it was unlimited. However, there is no limit to the number of beneficial owners. o Put on a statutory footing known as overreaching – if any two legal owners (2) (2/3) (2/4) want to sell the land, they can sell the land and the purchaser can have the land regardless of whether the other legal owners or beneficiaries have consented.

Reasons why “land” and “property” do or do not have stable definitions:  Stable – workable concept Not a stable definition:  “Includes” – not a fixed or full definition, this is because property law is pragmatic and tends to be sensitive to context, hence legislators avoided using a stringent definition.  Tests within case law – subjective and difficult to judge o Extent of ownership – Bernstein of Leigh – Ordinary use and enjoyment o Annexation – is the object intended to “improve” the land – mentioned in lectures: in the modern day, a less higher degree of annexation might be required than in Holland v Hodgson o Trespass – intent to exercise control over the land

Question Three Earlham Lane is a street in Sourwich comprised of terraced houses and a field on which recreational activities take place. The following events take place:

i)

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ii)

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Annabel lives at number 1 Earlham Lane. She has invited her friends at number 3 over for dinner. Her friends at number 3, Beryl and Constantinos, arrive at the specified time and are surprised to discover a new owner, Delia, alone in the house. Beryl and Constantinos request a meal from Delia. Deals with personal and proprietary interest. It is personal, not proprietary – deals with person who has originally created the right Proprietary right – attaches to the land itself. Does not affect Delia. Why? o Right to have dinner does not concern land… o Does not actually relate to substantive use to land. o Would it make it better land? Objectively no, the one off right to go to a persons house to have dinner…

Number 2 Earlham Lane is occupied by Elias. His property neighbours the graveyard, which is popular with runners. His friend and neighbour at number 4, Figen, is a keen runner and asks Elias if she can run over his back garden into the graveyard, rather than taking the road-based route to the graveyard’s gate. Elias agrees but then changes his mind 3 months later. Figen insists it is ‘too late’ for him to do so and decides to continue running over Elias’ back garden. Potentially a proprietary right – an easement (research this) If an easement has been granted, it is for eternity / perpetual or for a set period of time. Re Ellenborough park – to be an easement o Dominant and subservient o Burdened land o Benefitted land o Possible that it could come up in coursework o Don’t look in detail about four criteria

 iii)

Back in number 1, Delia is surprised to discover that Annabel took several items from the house with her when she moved. Whilst no mention had been made of these items in the contract for sale, Delia had assumed that these items would remain in the property. During viewing, Delia had noted: a. High-powered lighting in the ‘workshop space’. Both Annabel and Delia are artists who sell their wares in local shops and markets. Annabel was aware that Delia had purchased the house specifically because she needed accommodation with suitable workshop space. This lighting has now been removed from the ceiling by Annabel. 

Degree and purpose of annexation tests – Holland v Hodgson

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Fixtures – Botham v. TSB Bank Plc – if item is of necessary use of the room concerned, permanently improved room = fixture

b. A small built-in loom on which tapestries could be made was bolted in to the floor in the workshop space. The bolts were four-inch screws fixed into the ground and the walls. 

Merely a chattel – an object of enjoyment – the degree of connection is no more than is necessary for the enjoyment of the object.

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c. Fitted carpets were missing from both bedrooms. Damaged the building upon removal? Likely to be a fixture rather than a chattel

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d. A painting of number 1 Earlham Lane is missing from the reception in the property. It had been hanging on the wall to welcome guests as they entered. Chattel as stands upon its own weight But could be argued the other way Delia is also disappointed to discover a clause during the conveyance which prevents her from building in the garden.

iv)

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Number 6 is owned by Gbenga and Helena. They are angry that Figen has erected a large sign on her property which directs her local running club to her house, where their Sunday runs begin. This sign overhangs Gbenga and Helena’s bedroom window by an inch. They have asked Figen to remove the sign, but she refuses, stating that it is not touching their house and therefore is not intruding on their space. Enjoyment

Advise the parties in this scenario. Ensure your answer covers:    

The distinction between personal and proprietary interests. The identification of third-party interests. The law on fixtures and chattels. The extent of ownership a property-owner has over the land.

How well have your answers followed the tips on pages 15 – 21 of the module handbook?  

First place to look is the contract for sale. General principles: o Fixture, must be left. o Chattels, can be taken. o Holland v Hodgson o Objective standard

iii)a)    

Delia’s subjective need not relevant, if she wanted it included, she should have said. Berkley = permanent improvement to the building = fixture. Which lighting usually does… Can go either way

iii)b)  Could it have been used without being bolted down, a free-standing loom?  Need more information to know for sure  Lean towards a fixture iii)c)         iii)d)    

Botham v TSB – Fitted carpets = attached. BUT HOW FAR ATTACHED Modern ones not very strongly attached. Is it glued all the way down? Would it therefore be damaged if removed? Likely to be a fixture. Purpose of annexation seems to be to make a lasting improvement to the land itself People generally take carpets with them though (?) Likely to be a chattel because Botham says so, but on general principles of H&H, there is criticism for Botham…

Purely decorative Chattel Painting of house itself – architectural scheme? Doubt that one item can be an architectural scheme

v)   

Trespass They can force to remove...