Land: Protecting ownership (trespass) and fixtures

Tresspass to land Problem Q

1. who can sue → must be person in possession at time of trespass

• tenant can sue, landlord cant, unless landlord is a reversioner with a permanent injury claim

• possession is presumed to follow title if nobody else has possession (Bocardo; Powell)

2. Was there an interference?

• look for a direct, positive, voluntary act on land in the P possession, without authority: → e.g entering or remaining on the land, placing ovjects on or in the land, removing fixtures, intruding subsoil (bocardo) or into arispace with height needed for ordinary use (Kelsen; Bernstien)

• honest mistake is no defence (Matchitt)

3. Any authority to be there?

• check for a licence (express or implied), a lease, an easement, a statutory right, or a court access order (PLA ss319-320)

4. Remedies

• damages, trespass is actionable per se, → compensatory, general and exemplary (punitive) damages are available (Matchitt)

• injunction → prima facie available without damage, discretionary

• self help expulsion → may remove trespasser using reasonable force (without causing bodily harm)

• warnings to leave or stay off

• owner out of possession → can use action for recovery of land, trespass by relation, or a reversioners claim for permanent injury

Fixtures PQ engine

1. Why it matters: anything part of the land:

• belongs to the landowner;

• passes on a sale of the land;

• is caught by a mortgage over the land;

• may make its removal a trespass, or its detention a conversion (if its still a chattel)

2. Classify the object (elitestone), it is either:

• (a) a chattel; or

• (b) a fixture; or

• (c] part and parcel of the land

• Distinguish fixture from part and parcel only if a tenant or occupier wants to remove the item. Otherwise the result is the same either way

3. Apply the two tests from Holland (applied in elitestone; lockwood):

• Degree of annexation → how firmly is it attached? Can it be removed without destroying or damaging it?

• Object or purpose of annexation (intention) → usually decisive. Was it attatched to permanently improve the land, or for the better enjoyment of the object as a chattel?

4. Onus (Holland, adopted in lockwood):

• object rests only by its own weight, it is presumed a chattel. The person claiming it is part of the land bears the onus.

• object is attatched even slightly, it is presumed part of the land. The person claiming it is a chattel must prove that.

5. Intention is assessed objectively (Elitestone, Melluish)

• The parties private agreement (e.g owner contracts to keep ownership) → does not stop an object becomming part of the land in law (Melluish). At most it gives contractual right to sever it.

• subjective intention may carry some weight between the parties themselves, carries little weight against third parties

6. Tenants fixtures: trade and ornamental fixtures installed by a tenant are part of the land, but the tenant may remove them during or at the end of the tenancy. Dont confuse them with objects that were chattels all along

who can sue in trespass to land

the person in possession, tenant can sue, landlord generally cant

what are the elements of possession

intention to possess, and control to the exclusion of others (matchitt)

is damage required for trespass

no, trespass is actionable per se

is an honest mistake a defence to trespass

no (matchitt → mistake of the notice period)

how far down does ownership go

• to the strata below, including deep wells, until absurd;

• crown minerals are excluded (drilling diagonal wells through Bocardo's subsoil, without consent, was a trespass, even though the oil itself belonged to the Crown.)

how far up does ownership go

only as high as necessary for ordinary use and enjoyment (Bernstein). → a projecting sign or oversailing crane is trespass (Kelsen)

who possess the subsoil

it is presumed to be the paper title owner (Bocardo)

what must happen when a licence is revoked

licensee must be given a reasonable time to leave; after that, staying is trespass

can a lease give a tenant access over a neighbours land

No. → consent or a PLA order is needed, and the nighbours rights are the starting point (De Richaumont)

what damages are available for trespass

compensatory, general and exemplary

what limits self help

reasonable force

what are the trespass act offences

• refusing to leave after a warning (s 3)

• returning within 2 years after a warning to stay off (s 4)

what can an owner without possession do?

bring an action for recovery of land (plus mesne profits), sue for trespass by relation, or bring a reversioners claim for permanent injury

what are the three categories (fixtures)

1. chattel

2. fixture

3. part and parcel of the land

→ Elitestone

what are the two tests for fixtures

1. degree of annexation

2. Object or purpose of annexation (intention) → purpose usually decisive

who bears the onus if the object rests by its own weight

the object is presumed a chattel, so the person claiming it is part of the land bears the onus to prove it is not.

who bears the onus if object is attatched slightly

the object is presumed a part of the land (fixture), so the person claiming it is a chattel must prove it

how is intention assessed

objectively, a private agreement cannot prevent annexation, but may give a right to sever (Melluish)

why did the show home become part of the land (lockwood)

it was on foundations with services connected, and lockwood failed to discharge the onus

why did the modular units stay chattels

they were relocatable, with only minor attatchement, and the onus was discharged (Potton)

why did the bungalow become part of the land

it could only be removed by demolition (elitestone)

why did land fill stay a chattel (queenstown central)

its purpose was storage under a resource consent, so the land served the fill

what are the tenants fixtures

trade or ornamental fixtures that are part of the land but removable by the tenant

what is the consequence of wrongly removing or keeping an item

removing part of the land is trespass, keeping or destroying a chattel is conversion

how does the court treat neighbours propery rights

inviolate (De Richaumont) → court access order did not cover a commercial bilboard

Matchitt application

• honest mistake thought the order was 2 months total, but actually gave 4 months

• honest mistake no defence

• damages awarded for trespass and loss of use,

• for damage to fixtures: general damages, and exemplary damages

• use when owner or landlord evicts early

Bocardo application

use when question over smth happening below surface

• goes below but has a reasonableness view, i.e doesnt go to earths core

• paper title owner presumed to be in possession of below surface (powell)

Kelsen application

• airspace case

• advertising sign projecting about 8 inches into plaintiff airspace was trespass, injunction granted

Bernstein applicaiton

• airspace case

• rights in airspace only as high as is necessary for ordinary use and enjoyment. Plane taking airal photos was not trespass

→ anchor brewhouse → crane oversailing the land is trespass

De Richaumont applicaiton

advertising company leased wall with Richmaount (neighbour) consent, neighbour withdrew consent

• without consent, entry is trespass, lease cannot confer rights over a neighbours land

• court must treat the neighbours property rights as inviolate, may grant access only for a statutory purpose

• servicing a commercial bilboard did not qualify

holland application

classic test and onus for fixture questions

• degree and object of annexation

• rest on own weight → presumed chattel

• affixed even slightly → presumed part of the land (fixture)

Tower Hamlets application

• the sculpture

• ratio → if rests on own weight, moved in tact, placed there for its own display or enjoyment rather than to improve land = chattel

• It rested on its own weight on a plinth, and had been moved and lent for exhibitions, including overseas.

• Not dependent on its location, and not part of an integral desifn

• Tower Hamlets, which had acquired the land, claimed it as part of the land. Bromley, as successor to the original owner, said it was a chattel.
  
  Held: the sculpture was a chattel, not part of the land. Applying the degree and purpose of annexation:

  • Degree: it rested by its own weight and could be removed without damage.

  • Purpose: it was an entire object in its own right, enjoyed for itself. It wasn't placed there to improve the land or as part of an integral architectural design, so it didn't depend on its location.

  • Its history of being moved for exhibitions confirmed it wasn't intended to be a permanent part of the land.

  Ratio: an object that rests by its own weight, can be removed intact, and is placed there for its own display or enjoyment, rather than to improve the land, remains a chattel.

Potton application

• relocatable (modular units) , only minor attatchment

Queenstown central

land fill stored under the resource consent, the placement was intended to be temporary → purpose prevailed even though from a third parties view it appeared part of the land

• land served to store the fill, the fill never served or improved the land

Melliush application

• intention determined by a reasonable person would infer form the objective facts → parties agreement or subjective intentions are irrelvant

• The reason is that fixtures affect third parties (purchasers and mortgagees), who can see only objective facts

• a contract can give supplier a right to remove the object, but cant stop it becoming the land owners property

→ ownership over lifts, boilers, heating plant and alarm systems, installed in council buildings. Contract said ownership stayed with lessor, however equpment was installed so that to all outward appearences, it formed part of the building, became part of the land

• use for retention of hire agreement over installed equipment

Elitestone application

house resting by its own weight became part of lane

• bungalow was part and parcel of the land

Lockwood application

lockwood supplied show home to builder, retaining SI. Builder erected it on foundations, with power and water connected.. Land mortgaged to the bank. → builder defaulted on mortgage, lockwood removed the house, bank sue in trespass

• apply Holland:

• showhome affixed more than slightly, presumed part of the land, lockwood then bore the onus

• Lockwood failed to discharge onys → despite intention to be temporary (12 months).

• house was subject to mortgage

• intention between lockwood and builder may count, but that intention carries little weight against 3rd parties (i.e the bank)