Property LAW Outline PDF

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PROPERTY LAW OUTLINE 1. LAND a. Definition of Land LPA 1925 s(1)(ix) of any tenure, and mines and minerals, whether or not held apart from the surface, buildings and other corporeal hereditaments and incorporeal b. Physical Limits of Land GENERAL PRINCIPLE: whoever owns the soil owns everything up t...

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PROPERTY LAW OUTLINE 1. LAND a.

Definition of Land LPA 1925 - s.205(1)(ix) “Land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings and other corporeal hereditaments and incorporeal hereditaments…”

b. Physical Limits of Land GENERAL PRINCIPLE: whoever owns the soil owns everything up to the heavens and down to the depths // cuius est solum, eius est usque ad coelum et ad infernos. The rights of an owner extend below and above the surface of land itself NOTE: the maxim no longer applies directly in English law per Lord Hope in Bocardo. i. Rights Above the Land GENERAL PRINCIPLE: the landowner has rights to airspace above the land to the extent that is reasonable for the enjoyment of the land. Kelsen v Imperial Tobacco [1957] - injunction granted, forcing tobacco company to take down sign that encroached on the air space above K’s shop – held that K’s lease gave him a right to exclusive control over the shop and the air above it – a property right so the rest of the world had a prima facie duty not to encroach on that space Bernstein v Skyviews [1978] – S took aerial pictures of B’s property – B claimed this was a trespass – issue was the extent of his property right – held that rights to airspace extend to the height necessary for reasonable enjoyment – cujus est solum does not apply to modern realities NOTE: upper stratum is a public highway – if not every time a plane flew over land this would be trespass Even a very small interfere with a landowner’s airspace could constitute a trespass. Laiqat v Majid [2005] Anchor Brewhouse v Berkley House [1987] - crane passed over into private land – issue was whether this created an actionable nuisance – held that it did – structure that overhangs was a trespass – fact that the structure is annexed separates it from planes PUBLIC POLICY: owner’s control over airspace is limited because it would be unreasonable and impractical considering 21 st century air traffic. A balance must be struck between the claims of the party with a pre-existing property right and the freedom of others.

ii. Rights Below the Land GENERAL PRINCIPLE: ownership is not limited to the surface of the land itself, extends below the land until the concept becomes absurd. Edwards v Lees Administrators [1936] - couple discovered cave under their land, charged people to visit – third of cave was under neighbour’s land – held that this was a trespass and they to pay neighbour a share of the profits NOTE: American case, persuasive only Star Energy Weald Basin Ltd v Bocardo SA [2010] - oil field under a property – S had drilled under B’s land – issue was the extent to which the property right extended below the land – held that the limit to a right below land was the point at which the concept of ownership became absurd – owner of surface owns substrate beneath, unless transferred to another by statute/conveyance – no question of subsurface becoming public highway, like airspace c.

Objects Included in Land GENERAL PRINCIPLE: there is a distinction between independent objects and those that become part and parcel of the land.

the

ANNEXATION TEST: determines whether objects are part and parcel of land, two stage test from Holland v Hodgson [1872]; i.

Degree of annexation - How firmly a chattel is attached to the land Elitestone v Morris [1997] – the greater the degree of attachment, the more likely the relevant object is a fixture – a fixture merges with the land

ii.

Purpose of annexation - Why a chattel was attached to the land Botham v TSB Bank [1996] – question is whether the installation of the object would in ordinary circumstances have been intended to be a permanent accretion or whether it was meant to be temporary Potton Developments v Thompson [1998] – if an item was not intended to be a fixture it will mean that it is not one

i.

Fixtures GENERAL PRINCIPLE: whatever is attached to the soil becomes part of it // quinquid plantatur solo, solo cedit. -

Independent objects are chattel - Tangible things that can be owned but which are not land - Said objects can accede to become part and parcel of the land i.e. fixtures

Elitestone Ltd v Morris [1997] – fixtures - freeholders of land where wooden bungalows were erected – structure rested on concrete pillars – E acquired land to redevelop – issue was whether the bungalow was part and parcel of the land – held that it was – house was constructed in a way that it could not be removed without destruction – thus cannot be a chattel – it was not demountable, part of the land – house constructed in a way that could not have meant it was intended as chattel Tower Hamlets LBC v Bromley LBC [2015] – chattels - sculpture on concrete slab in front of blocks in TH – TH wanted to sell it – B claimed ownership – issue was whether sculpture was part and parcel of land – held it was not – two stage test: degree/method and object/purpose of annexation – sculpture could be removed without damage ii.

Items Found In/On the Land GENERAL PRINCIPLE: relativity of title, property rights of different strengths exist, and some may be stronger than others. - Earlier property right is the strongest Armory v Delamirie [1722] – chimney sweep found a jewel, took it to jeweller – jewel shop owner refused to return it – issue was whether he had a property right even though he had just found the item – held that he did have a right – finders obtain title against anyone except for the true owner KEY RULE: mere fact that an object was found on an owner’s land does not give them special rights if that object is not a fixture. Hannah v Peel [1945] – P bought house, did not move in – house requisitioned by government for use by armed forces – H found brooch in window frame, handed to police – returned to P – H claimed a property right to brooch because he found it – issue was whether H acquired a property right by virtue of finding the brooch – held that he did – taking physical control generally grants a property right EXCEPTIONS TO THE RULE: three exceptions that favour landowners. 1.

Owner manifests intention to exercise control over objects found in a building on the land Parker v BA [1982] – P was waiting for flight in BA lounge – found gold bracelet, handed it in to BA staff and said he wanted it back if no one claimed it – BA sold bracelet – issue was whether P acquired better ownership rights – held that he did – expands on Hannah v Peel by showing that manifesting intention to exercise control over land and all things on it can help owner acquire property rights KEY OPINION: McFarlane – hard to see why such an intention alone should give B a better right than a party who found and took possession of the object

2.

Where an object is found in the land

A landowner has rights superior to those of finders over things in or attached to the land. Regardless of the occupier’s awareness of their presence. 3.

Where the finder is a trespasser or was acting dishonestly Waverley Borough Council v Fletcher [1995] – WBC had freehold in a park, open to the public for recreational use – F visited with metal detector, found brooch below surface – WBC claimed property right as it was found on its land – issue was whether the council had a property right – held that they did – F’s digging were not within council’s permitted use of land – F’s conduct constituted trespass, council had the better right KEY OPINION: Donaldson LJ – public policy demands owner has a better right than the finder

iii.

Treasure GENERAL RULE: an item that is treasure under the Treasure Act 1996 is property of the state.

2. PERSONAL RIGHTS AND PROPERTY RIGHTS a.

Distinction Between Personal and Property Rights Two types of rights in land; 1. Personal Rights – rights in personam: rights which only affect the parties that originally created the right 2.

Proprietary Rights – rights in rem: rights capable of affecting third parties, bind the world

Hill v Tupper [1863] – proprietors owned a canal, made a promise to H for exclusive right to put pleasure boats on the canal – T started doing this as well, H objected that this interfered with his property right – issue was whether this was a valid property right – held that it was not – one cannot create property rights unconnected with the land – it was only a personal right against the company, could not bind the world b. Property Rights i. Legal Property Rights – s.1 LPA 1925 1.

Estates in Land – s.1(1) LPA Two types of legal estate in land; i.

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Estate in fee simple absolute in possession i.e. a freehold

Only possible to own an estate in land, a freehold is the most permanent way to consider land but still not perpetual

o

ii. -

All land is vested in the Crown  If there are no heirs, land returns to the Crown – ‘bona vacantia’

Term of years absolute i.e. a leasehold

Confer ownership for a specified period GENERAL PRINCIPLE: you cannot give what you cannot have, freeholds are not inherently perpetual and thus when granting another ownership rights these must also be time limited – ‘nemo dat quod non habet’.

Street v Mountford [1985] – S gave M a right to occupy two rooms in a house with exclusive possession – S had M sign a form saying it was not a lease – issue was whether it was a licence or a lease – held that it was a lease – can only have a lease if there is exclusive possession for land for a term Prudential Assurance v London Residuary Body [1992] – leaseback agreement made on strip of land near edge of highway – lease said to last until it was needed to widen the road – issue was whether the lease was valid – held that it was not – prospective certainty was required for a lease, a nominal date should be set 2.

c.

Interests in Land – s.1(2) LPA Lesser rights that can be created at law.

Personal Rights i. Licences 1.

Nature of a Licence GENERAL PRINCIPLE: B has permission to make use of A’s land without having a recognized legal or equitable property right in it. KEY RULE: licences are only a personal right B has against A.

bind

National Provincial Bank v Ainsworth [1996] – Mrs. A had permission to occupy the former matrimonial home which was solely in her husband’s name – her right applied only to her husband, was a licence – could not the bank as it was a third party, had acquired a legal charge Thomas v Sorrell [1673] – no proprietary rights arise under a licence, but it will confer legality on an action

2.

Bare Licences GENERAL PRINCIPLE: B has permission to make use of A’s land but there is nothing to prevent the revocation thereof. -

Arises by express or implied grant

3.

Limited in extent, does not allow the licensee unlimited rights over the property Can be revoked at any time

Contractual Licences GENERAL PRINCIPLE: a licence granted expressly or impliedly in return for valuable consideration. KEY RULE: not an interest in land, must not be made in writing to comply with s.2 LP(MP)A 1989 -

Can be revoked at any time

Hurst v Picture Theatres Ltd. [1915] – H forcibly ejected from a cinema though he had a ticket – brought an action is trespass – held that if a licence is coupled with a grant of an interest it is not revocable by licensor – a mere licence can be revoked at any time

even however,

-

licence

not

A personal right which cannot bind a third party

King v David Allen & Sons Ltd. [1916] – DA granted K a contractual to put up posters and ads on a cinema wall – cinema sold, new company refused the right to put up posters – held that the licence was a purely personal right – only enforceable between the parties to the contract – a proprietary right EXCEPTIONS:

party

Manchester Airport v Dutton [2000] – National Trust owned land next to Manchester Airport, gave airport a licence to cut down trees to build a new runway protestors occupied – airport applied for court order to force them to leave – court granted possession to the airport, allowed them to assert a right against a third even though they had not taken exclusive possession Errington v Errington and Woods [1951] – man purchased land for son and daughter-in-law, said they could have it if they paid the mortgage instalments – these constituted 2/3 of the purchase price, it would be theirs when the mortgage was paid – father died, son left the wife – house transferred to the mother who attempted to recover possession from the wife – held that the contractual licence of the wife was binding on the mother i.e. the successor in title KEY OPINION: Lord Denning – notice of the licence made it binding on purchasers NOTE: HoL refused to enforce this in National Provincial Bank Ltd. v Ainsworth Binions v Evans [1972] – E remained in a house she had lived in rent free after her husband died – was given the right to continue this given that she kept the house in good

repair and maintained the garden – given the right by the estate her husband had worked on – B acquired the estate and tried to evict her – held that her rights bound B as they had purchased the house subject to them and at a reduced price 4.

Estoppel Licences GENERAL PRINCIPLE: a licence that arises in favour of the licensee by means of the doctrine of proprietary estoppel. KEY RULE: rights arising under estoppel constitute licences in land. Inwards v Baker – father encouraged son to build a house on his land – son built it at his own expense, own labour – son moved in and remained – died, property went to his partner – partner brought proceedings against to remove him from the property – held that B was entitled to remain – his expenditure of money and father’s encouragement raised an equity – by granting a licence for life

father son satisfied

3. REGISTRATION AND ACQUISITION OF LEGAL ESTATES a.

Formal Acquisition of Legal Title Three stages; 1.

Contract: vendor and purchaser enter a contract for sale of the legal estate -

S.2 LP(MP)A Valid contracts for the sale of land must be made in signed writing and incorporate all terms the parties have expressly agreed

First Post Homes Ltd. v Johnson – purchaser had prepared a letter for vendor to sign – purchaser had not signed the letter, only signed a plan referenced in letter – not valid because the plan did not refer to the letter and there was no contract – held that all contracts for sale/disposition of land must comply with s.2 LP(MP)A EXCEPTIONS: - Contracts to grant leases of less than three years at full market rent can be created orally (s.2(5)(a) LP(MP)A) - Claims based in proprietary estoppel - Constructive trusts 2.

3.

Creation/transfer: contract is executed by the vendor transferring title, purchaser pays purchase price and takes possession Registration: purchaser applies to become registered proprietor, legal title does not vest in purchaser until registration - Legal title does not vest with purchaser until registration - But contracts for sale of land are specifically enforceable

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- In the event of breach court will order performance - Estate contracts are property rights Constructive trust arises on entry of specifically enforceable contract - Vendor holds legal estate on trust for purchaser

b. Formalities KEY RULE: all conveyances of land must be made by deed per s.52(1) LPA - Known as a conveyance in unregistered land - Called a transfer in registered land - Legal title will not pass if this is not complied with REQUIREMENTS OF A DEED: found in s.1 LP(MP)A - Signature from grantor and a witness - Statement confirming it is a deed EXCEPTIONS: -

S.54(2) LPA No formalities required for legal leases under three years

c. Registration of Title i. Underlying Principles Identified by Ruoff (1957). 1.

Mirror Principle - Register is a mirror which reflects accurately and completely the current facts that are material to title - Tension remains between this principle and overriding interests

2.

Curtain Principle - Provides that the register is the sole source of information for proposing purchasers - Purchasers must not concern themselves with equities and trusts which lie behind this ‘curtain’ of information - Ensured through overreaching as this enables purchasers to take land free from beneficial interests under trusts

3.

Insurance Principle - If there is a flaw in the register anyone who suffers loss as a result must be put in the same position they would be in if the register was an accurate mirror - Reflected in the provision for indemnity payments, Sch. 8 LRA

ii. Classification of Interests in Registered Land 1.

Four types of interests in registered land; i.

Registrable interests - Rights in land capable of substantive registration - Fee simple absolute in possession and leases over seven years

ii. iii.

Registrable charges Minor interests/burdens All interests that are not registrable estates/charges/overriding interests - Take effect in equity - Can be protected by an entry on the relevant register - Failure to register makes the interest ineffective against third parties in the event of disposition - If there are various interests protected by entries on the same title their priority is based on their date of creation (not registration) -

iv.

Overriding interests - Rights that will bind without appearing on the register - Schedule 1 LRA: interests that override on first registration - Leases less than 7 years - Rights of persons in actual occupation - Legal easements - Schedule 3 LRA: interests that will override on a subsequent registration of the property - Rights of Persons in Actual Occupation - Sch. 3 Para. 2 Lloyds Bank v Rosset [1989] – husband purchased a house that needed renovation – work was started before completion of purchase – husband took out mortgage, unknown to wife – she claimed to be in actual occupation – court was prepared to find that she was NOTE: claim failed in the HoL so the issue was not discussed further Thomas v Clydesdale Bank [2010] – house under renovation, charge on property – bank was to take possession – wife claimed she was in actual occupation on reasonable inspection – could establish actual occupation during the renovations due to her daily presence on the property, intention to live there permanently and workers acting on her behalf -

Temporary absences will not prevent actual occupation so long as there is evidence of permanent occupation

Chhokar v Chhokar [1984] – legal title in husband’s name – they all left to India, husband left wife, they returned, she was pregnant – husband sold house while she was giving birth – buyer tried to assert that the wife had to leave – issue was whether she was in actual occupation while she was in hospital having the baby – held

that she was, a temporary absence did not defeat her actual occupation Link Lending v Bustard [2010] – B was undergoing treatment for a mental condition in hospital – H became new registered proprietor, charged property to LL – LL tried to take possession – held that B was still in actual occupation – test included intention to return to the property and the presence of her furniture and other property in the house -

Preparatory steps leading to actual residential occupation is not sufficient

Abbey National Building Society v Cann [1991] – son bought house for mother by mortgage – mother was on holiday the day of completion of the charge – her furniture arrived and was moved into the house 30mins before completion – held that she was not in actual occupation before completion of charge, her rig...