Term
| What is the difference between a proprietary right and a personal right? |
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Definition
Proprietary remedy = re-posession of the land. As the right attaches to the land, the owner of the right can enforce it against any new owners
Personal remedy = remedies against the person + privity of contract means that a personal right cannot be enforceable against a new owner |
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Term
| What does 'enforce your right in rem' mean? |
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Definition
| Enforce your right against the thing |
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Term
| What does 'enforce your right in personam' mean? |
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Definition
| Enforce your right against the person |
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Term
| Is a proprietary right a right in rem, or in personam? |
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Definition
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Term
| Is a personal right a right in rem, or a right in personam? |
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Definition
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Term
| Can non-owners of the land have proprietary rights over the land? |
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Definition
| YES - e.g. leaseholds, Mortgages, easements... |
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Term
| What is an 'estate in land'? And what does it mean? |
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Definition
| Freehold / Leasehold. A right to possess the land for a slice of time. |
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Term
| What is the best type of estate in land that you can have? |
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Definition
| Fee simple absolute in posession (right to occupy the land indefinitely until you run out of heirs) |
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Term
| What part of what statute sets out 'fee simple absolute in posession' as being the one of only two estates in land which are capable of subsisting or of being conveyed or created at law? |
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Definition
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Term
| If you have a fee simple absolute in posession, and you die, and you don't have any heirs, what happens to the land? |
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Definition
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Term
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Definition
| Sets out 'fee simple absolute in posession' as being the one of only two estates in land which are capable of subsisting or of being conveyed or created at law |
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Term
| Which part of which Act sets out 'A term of years absolute' as being the one of only two estates in land which are capable of subsisting or of being conveyed or created at law? |
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Definition
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Term
| Can a sublease provide proprietary rights? |
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Definition
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Term
| If a lease is granted out of a lease, what will it be called? |
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Definition
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Term
| What is the only temporal limitation on a sub lease? |
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Definition
| It has to be shorter than the head lease |
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Term
| If you grant a lease out of a freehold/leasehold estate? |
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Definition
| Freehold reversion or leasehold reversion... at the end of the granted lease, the land will revert back to you. |
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Term
| Why is there a limit on the number of recognised legal interests in land? |
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Definition
| Because proprietary rights are so powerful |
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Term
| Which part of which act specifies the only types of legal interests in land? |
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Definition
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Term
| What are the only LEGAL interests in land that can exist? |
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Definition
| Interests as specified in s2(a-e) LPA 1925 |
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Term
| Do all legal interests in land confer proprietary rights? |
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Definition
| Yes - if they have been properly created |
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Term
| At a basic level, what needs to be done in order to create a legal interest in land? |
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Definition
i) Must be on the list of rights which are capable of existing as legal interests
ii) Must comply with definitional requirements (e.g. Easements must comply with ellenborough park)
iii) Must comply with formalities set down for aquisition of the right |
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Term
| How has land law overcome the problems associted with 'not knowing what rights may exist over land that you purchase'? |
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Definition
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Term
| What is the most important legislation w.r.t registration of land? |
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Definition
| Land Registration Act [2002] |
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Term
| What part of what Act can you use as a guide to what is contained in a conveyance of land? |
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Definition
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Term
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Definition
| Defines what is contained in a conveyance of land. |
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Term
| Whys is it important to know 'what is land'? |
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Definition
i) When you buy land, you want to know what is included in the sale - e.g. is the greenhouse included?
ii) Land must be transferred by deed |
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Term
| Which part of which Act tells us that you must use a deed to transfger land? |
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Definition
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Term
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Definition
| YOU MUST USE A DEED TO TRANSFER LAND |
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Term
| What is a general rule which can help determine whether a right is personal or proprietary? (subject to a few exceptions) |
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Definition
| Proprietary rights of limited use should not result in the ability to compel another to do a positive act. |
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Term
| What are the different sources which determine whether rights have proprietary status? |
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Definition
| Statutory sections and court judgements |
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Term
| Which part of which Act defines 'what is land'? |
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Definition
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Term
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Definition
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Term
| Grigsby v Melville [1974] |
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Definition
A CONVAYANCE OF LAND ORDINARILY CARRIES WITH IT ALL THAT IS BENEATH THE SURFACE
C owned a property with a cellar beneath it
Access to the cellar was only from D's property
D was using the cellar
C claimed an injunction to restrain the D from trespassing on her property
HELD - the D has been trespassing, the cellar was part of C's property |
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Term
| Which case can be used to show that a landowner owns all land beneath the surface of their property? |
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Definition
| Grigsby v Melville [1974] |
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Term
| Bernstein v Skyviews [1978] |
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Definition
AN OWNER'S RIGHTS IN THE AIRSPACE ABOVE THEIR LAND ARE RESTRICTED TO SUCH HEIGHT AS IS NECESSARY FOR THE ORDINARY USE AND ENJOYMENT OF THE LAND. ABOVE THAT HEIGHT, THEY HAVE NO GREATER RIGHTS THAN ANY OTHER MEMBERS OF THE PARTY
C tried to sue D for taking an aerial photo of his house
HELD - the D were entitled to be in the airspace above the C's house |
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Term
| Which case can be used to show that an owners rights in the airspace above their land are restricted to such a height as is necessary for the ordinary use and enjoyment of the land? |
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Definition
| Bernstein v Skyviews [1978] |
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Term
| Kelsen v Imperial Tobacco Co. [1957] |
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Definition
THE LOWER AIRSPACE ABOVE THE LAND BELONGS TO THE LAND OWNER
C sought an injunction against D for a sign D had erected which projected into the C's lower airspace
HELD - the D had to remove the sign. |
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Term
| Kelsen v Imperial Tobacco Co. [1957] |
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Definition
THE LOWER AIRSPACE ABOVE THE LAND BELONGS TO THE LAND OWNER
C sought an injunction against D for a sign D had erected which projected into the C's lower airspace
HELD - the D had to remove the sign. |
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Term
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Definition
| A NEIGHBOURING OWNER IS ENTITLED, WITHOUT PRIOR NOTICE, TO LOP OFF OVERHANGING BRANCHES THAT INTRUDE INTO HIS LOWER AIRSPACE. HOWEVER, HE IS NOT ENTITLED TO ENTER ONTO THE NEIGHBOUR'S LAND TO DO THIS, EXCEPT IN CASES OF EMERGENCY. HE MUST LOP OFF THE BRANCHES FROM HIS OWN LAND |
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Term
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Definition
IF PART OF PERSON'S PROPERTY PROTRUDES INTO A NEIGHBOUR'S LOWER AIRSPACE = TRESPASS
D had an extractor fan which protruded 750mm (7.5cm) into the C's lower airspace
HELD - the extractor fan was trespassing |
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Term
| Which part of which statute allows for any flight of an aircraft over land 'at a height above the ground which having regard to wind, weather and all the circumstances of the case is reasonable'? |
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Definition
| s76(1) Civil Aviation Act 1982 |
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Term
| s76(1) Civil Aviation Act 1982 |
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Definition
| Allows for any flight of an aircraft over land 'at a height above the ground which having regard to wind, weather and all the circumstances of the case is reasonable' |
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Term
| W.r.t a lake - the sub-soil beneath the water belongs to whom? |
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Definition
| Whomever owns the land on which the lake stands |
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Term
| To whom does the bed of a river belong to (bed = bottom of the river, e.g. the land under the water) |
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Definition
| The bed of the rifer belongs to the owner of the land through which the river passes. Where the river forms a boundary between two polots, it is assumed that each landowner owns the river bed up to the middle line. |
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Term
| If a river runs through your property, do you have an absolute right to the water in it? |
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Definition
| NO - the landowner may take water for ordinary purposes (e.g irrigation + industrial uses) provided that the purpose is connected with the land and the water is returned to the stream in substantially the same condition. |
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Term
| Under what circumstances can a landowner use water from a river that runs through their land? |
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Definition
| Where they use the water for ordinary uses, and where the purpose is connected with the land, and the water is returned to the stream in substantially the same condition. |
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Term
| If a property is bounded by a river, a road or a highway - up to what point does the landowner own? |
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Definition
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Term
| If a property is bounded by a road, and the road is adopted by the local authority, what happens??? |
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Definition
i) The local authority are responsible for the upkeep of the road.
ii) The landowner owns the sub-soil of the road, up to the mid-point
iii) If the road is closed, up to the mid-point of the road reverts to the landowner. |
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Term
| If a property is bounded by a river, and the river changes its course, what happens to the landowners property? |
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Definition
| The property changes accordingly (either gets bigger or smaller), provided that the changes are gradual and imperceptible. |
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Term
| If the land is bounded by the sea, up to what point does the landowner own? |
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Definition
| Up to the high water mark - after that, it belongs to the Crown (if there is erosion or alluviation = same rules for river changing course) |
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Term
| If you own land, and there are wild animals on it, what happens? |
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Definition
| WILD ANIMALS CANNOT BE THE SUBJECT OF ABSOLUTE OWNERSHIP - however, the landowner does have the right to hunt and catch wild animals on their land (subject to any animal protection legislation) |
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Term
| If someone kills a wild animal on your land, what happens? |
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Definition
| On death, wild animals become the personal property of the landowner, regardless of who caught or killed the animal. |
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Term
| If you own land, and there are wild animals on it, what happens? |
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Definition
| WILD ANIMALS CANNOT BE THE SUBJECT OF ABSOLUTE OWNERSHIP - however, the landowner does have the right to hunt and catch wild animals on their land (subject to any animal protection legislation) |
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Term
| If someone kills a wild animal on your land, what happens? |
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Definition
| On death, wild animals become the personal property of the landowner, regardless of who caught or killed the animal. |
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Term
| In tackling an exam question - where a party finds an object on land (theirs or another's). Which is the first 'thing' you should refer to? |
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Definition
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Term
| If an item found on land is deemed to be treasure, to whom does it belong? |
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Definition
| The Crown or the Crown's franchisee |
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Term
| If an object is found on land, and it is not treasure trove, what facts will determine who it belongs to? |
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Definition
Whether...
i) it is found within / attached to the land
2) it is found unattached to the ground (if so - did the landowner manifest an intention to exercise control over the land) |
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Term
| Where a person finds a non-treasure item which is in or attached to the land, to whom does the item belong? |
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Definition
| The landowner of the land upon which it was found - even if the landowner was not the finder. (by being attached to the land, it becomes part of the land) |
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Term
| Which case can be used to show that non-treasure items found within or attached to the land belong to the landowner? |
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Definition
| Waverley Borough Council v Fletcher [1996] |
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Term
| Waverley Borough Council v Fletcher [1996] |
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Definition
| ITEMS FOUND WITHIN OR ATTACHED TO THE LAND BELONG TO THE LANDOWNER - REGARDLESS OF WHETHER OR NOT HE WAS THE FINDER |
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Term
| w.r.t a 'manifest intention to exercise control over items found on the land', how can this be made? |
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Definition
| It can be made impliedly, or expressly. Impliedly would be e.g. private property with restricted access, or where the occupier is bound by law to accept liability for chattels lost on his premises |
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Term
| Parker v British Airways Board [1982] |
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Definition
| AN OCCUPIER OF A BUILDING HAS RIGHTS SUPERIOR TO THOSE OF A FINDER OVER CHATTELS FOUND ON THE PROPERTY, BUT ONLY IF, BEFORE THE CHATTEL IS FOUND, HE HAS MANIFESTED AN INTENTION TO EXERCISE CONTROL OVER THE BUILDING AND THE THINGS WHICH MAY BE UPON OF IN IT. |
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Term
| Which case can be used to show that, where a chattel is found unattached to the land, the owner is only entitled to it if he has manifest a clear intention to have control over items found in that place? |
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Definition
| Parker v British Airways Board [1982] |
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Term
| Parker v British Airways Board [1982] - obiter relating to the secure-ness of land |
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Definition
| Where property land is highly secure (e.g. a bank vault) - there is clearly an implied intention to exercise control. In contrast, where land is very open (e.g. a park), there is no implied intention to have control. The middle ground = places like a fenced in front-garden, and petrol station forecourts, there is no implied intention to have control. Where there is no implied intention to have control (open places & mid-open places), the owner must expressly manifest an intention to take control. |
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Term
| Which case kind of contradicts the rule that private property w. restricted access = implied intention for the owner to take control of all things found thereupon? |
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Definition
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Term
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Definition
CASE KIND OF CONTRADICTS THAT PRIVATE RESTRICTED PREMISES CARRY AN IMPLIED INTENTION THAT THE OWNER WILL TAKE CONTROL OF ALL THINGS FOUND THEREUPON
D = homeowner of a house that he had never occupied
C = soldier who was requisitioning the house
Whilst the C was requisitioning the house, he found a brooch loose in a crevice
HELD - the C could keep the brooch
(the reasons for this decision are unclear) |
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Term
| Bridges v Hawkesworth [1851] |
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Definition
WHERE THE OWNER OF PUBLICLY ACCESSIBLE LAND HAS NOT MANIFESTED AN INTENTION TO TAKE CONTROL OF ALL THINGS FOUND ON THE LAND - ANYTHING FOUND BELONGS TO THE FINDER
C = customer in a shop
D = shopkeeper
C found money on the floor of the shop
HELD - the C was entitled to the money as the shop was a public place and the shopkeeper had not manifested an intention to exercise control over lost items |
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Term
| Are natural products of the soil considered to be part of the land? |
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Definition
| YES - (natural products of the soil = grass, timber, fruit from trees) (ANYTHING WHICH REQUIRES LABOUR TO CREATE IT E.G. ANNUAL CORN CROPS = NOT PART OF THE LAND) |
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Term
| Saunders v Pilcher [1919] |
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Definition
| 'A CLEAR CONTRAST HAS ALWAYS BEEN DRAWN BETWEEN THOSE CROPS WHICH ARE PRODUCED IN THE YEAR BY THE LABOUR OF THE YEAR, AND CROPS SUCH AS FRUIT GROWING ON TREES, WHERE THE ONLY PRODUCTIVE ACT WAS THE PLANTING OF THE TREES. |
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Term
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Definition
| A fixture is a chattel which when attached physically to the land, becomes part of the land. |
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Term
| To whom does a 'fixture' belong? |
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Definition
| The fixture belongs to the land. Therefore, it goes with the land on transfer of ownership, unless lawfully severed beforehand. |
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Term
| What are the two tests for determining whether something is a 'fixture' or not? |
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Definition
i) The degree of annexation
ii) The purpose of annexation |
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Term
| What does 'the degree of annexation' element of the 'fixtures test' mean? |
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Definition
The more firmly the object is fixed to the land or building, the more likely it is to be classified as a fixture, even if it is fairly easy to remove.
If, on the other hand, it rests on the land by its own weight, it is generally considered to be a chattel. |
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Term
| What does 'the purpose of annexation' test mean? |
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Definition
| Was the annexation for the more convenient use/enjoyment of the chattel as a chattel, or was the annexation for the more convenient use/enjoyment of the land/building? |
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Term
| Which cases can be used to show that if there is a discrepancy between the 'purpose' and 'degree' test, the 'purpose' test finding will prevail? |
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Definition
i) OBITER - Hamp v Bygrave [1982]
ii) D'Eyncourt v Gregory [1866] - chattel resting on its own weight was held to = a fixture |
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Term
| If a chattel is annexed to the land for the more convenient use of the chattel as a chattel - but removing the chattel would cause damage to the fabric of the building/land, what will happen? |
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Definition
| If an item cannot be removed without damage to the fabric of the building, it is likely to be a fixture. |
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Term
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Definition
| SPINNING LOOMS BOLTED TO THE FLOOR OF A MILL WERE HELD TO BE FIXTURES |
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Term
| Smith v City Petroleum Co. Ltd [1940] |
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Definition
| PETROL PUMPS ATTACHED TO THE STATION FORECOURT WERE HELD TO BE FIXTURES |
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Term
| Melluish v BMI (No.3) [1996] |
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Definition
| CENTRAL HEATING, ELEVATORS, VIDEO/ALARM SYSTEM AND SWIMMIN POOL FILTRATION PLANT WERE HELD TO BE FIXTURES |
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Term
| Aircool Installations v BT [1995] |
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Definition
| AIR CONDITIONING EQUIPMENT FIXED INTO THE WALLS OF A BUILDING WERE HELD TO BE FIXTURES |
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Term
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Definition
| PRINTING MACHINERY RESTING ON ITS OWN WEIGHT WAS HELD NOT TO BE A FIXTURE |
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Term
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Definition
| A DUTCH BARN RESTING UNDER ITS OWN WEIGHT WAS HELD NOT TO BE A FIXTURE |
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Term
| H E Dribble Ltd v Moore [1970] |
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Definition
| MOVABLE GREENHOUSES WERE HELD NOT TO BE A FIXTURE |
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Term
| Do the courts look at the purpose for installing the chattel objectively, or subjectively? |
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Definition
| They view it objectively - from the perspective of the reasonable man |
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Term
| Which case is used to show that the courts look at the purpose for annexation objectively? |
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Definition
| Botham v TSB Bank plc [1997] |
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Term
| Chattels which are incorporated into the architectural design of a building - what is the general rule? |
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Definition
| Regardless of whether or not they are fixed to the land, presumption = fixtures, as the purpose was for the enjoyment of the land. |
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Term
| D'Eyncourt v Gregory [1866] |
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Definition
| A STONE GARDEN SEAT AND ORNAMENTAL STATUTES (NOT FIXED TO THE LAND) WERE HELD TO BE FIXTURES BECAUSE THEY FORMED PART OF THE ARCHITECTURAL DESIGN OF THE HOUSE AND ITS GROUNDS |
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Term
| Kennedy v Secretary of State for Wales [1996] |
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Definition
| CHANDELIERS AND A CARILLON TURRET CLOCK IN A STATELY HOME WERE HELD TO BE FIXTURES OWING TO THEIR BEING PART OF THE OVERALL DESIGN OF THE HOUSE |
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Term
| La Salle Recreations v Canadian Camdex Investments Ltd [1969] |
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Definition
| WALL TO WALL CARPETING IN A HOTEL WAS CONSIDERED TO BE PART OF THE DESIGN AND THEREFORE = FIXTURES |
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Term
| Why is it interesting to compare 'La Salle Recreations v Canadian Camdex Investments Ltd [1969]' with 'Botham v TSB Bank plc [1997]? |
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Definition
| Because, in Botham, carpets were held not to be fixtures - the carpets were not deemed to be for the purpose of improving the property. Whereas, in La Salle, the carpets were held to be part of the design of the property. |
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Term
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Definition
| A TAPESTRY TACKED SECURELY TO A WALL WAS HELD TO BE A CHATTEL, AS THE PURPOSE WAS MERELY TO DISPLAY THE TAPESTRY IN ORDER TO ENJOY IT. |
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Term
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Definition
| A TAPESTRY TACKED TO THE WALL WAS INCLUDED IN PART OF A HOUSE BUILT AS A SPECIMEN EXAMPLE OF AN ELIZABETHAN HOUSE WAS HELD TO BE A FIXTURE? |
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Term
| Why is it interesting to compare 'Leigh v Taylor [1902]' with 'Re Whaley [1908]' |
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Definition
| Both concerned tapestries attached to a wall. In Leigh, it was held that the tapestry was there for enjoyment in itself. Whereas in Whaley, the house was built to replicate an Elizabethan house, and thus the tapestry on the wall was held to be a fixture. |
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Term
| Credit Valley Cable TV/FM Ltd v Peel Condominium Corp [1980] (CANADIAN CASE) |
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Definition
| TELEVISION CABLING AND ANTENNA WERE HELD TO CONSTITUTE CHATTELS. THE EQUIPMENT WAS INSTALLED NOT SO MUCH FOR THE PERMANENT IMPROVEMENT OF THE LAND, BUT FOR THE ENJOYMENT OF TELEVISION. |
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Term
| Chelsea Yacht & Boat Co v Pope [2001] |
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Definition
| CA held that a house boat was a chattel and not a fixture, because it could easily be removed from its moorings and service connections AND as a matter of common sense, could not be said to be part and parcel of the land |
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Term
| Why is it important to distinguish between fixtures and chattels? |
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Definition
i) As a fixture is part of the land, ownership can only be transferred by a conveyance. A chattel can be transferred by physical delivery
ii) The owner may not remove a fixture after he has contracted to sell the property to another |
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Term
| Which part of which act states that a conveyance automatically includes all fixtures in the property? |
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Definition
| s62 LPA 1925 (unless they are excluded from the sale under s62(4)) |
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Term
|
Definition
| A conveyance automatically includes all fixtures in the property (unless they are excluded from the sale under s62(4) |
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Term
| If a tenant introduces something onto the land, and it is deemed to be a fixture, what happens? |
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Definition
| It must be left for the landlord at the end of the lease - except for trade, ornamental, domestic or agricultural fixtures. |
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