Land Law: What is 'Land'? (Lecture #2)

The Statutory Definition of Land

Law of Property Act (LPA) 1925, s 205(1)(ix):

“Land” includes land of any tenure, and mines and minerals … buildings or parts of buildings (whether the division is horizontal, vertical or made 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, or derived from land… “hereditament” means any real property which on an intestacy
occurring before the commencement of this Act might have devolved
upon an heir

Definitions

land of any tenure = freehold and leashold both count as land
corporeal hereditaments = physical objects: the physical land and it’s physical attachments
incoporeal hereditaments = intangible rights in, over or in respect of land (e.g. mortgages, convenants, easements etc.)

The Extent of Land

‘He who owns the land owns everything reaching up to the very heavens and down to the depths of the earth’ = cuius est solum, eius est usque ad coelum et ad inferos

Airspace

The Lower Stratum

Bernstein of Leigh (Baron) v Skyviews & General Ltd. [1978] QB 479
Griffiths J: ‘the air space above … land to such height as is necessary for the ordinary use and enjoyment of … [the] land and the structures upon it’

The Upper Stratum

Bernstein of Leigh (Baron) v Skyviews & General Ltd. [1978] QB 479 Griffiths J: ‘above that height … [a landowner] has no greater rights in the airspace than any other member of the public.’

Civil Aviation Act 1982, s 76(1):

No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable so long as [the aircraft complies with all relevant regulatory
legislation].

Subterranean Space

Law of Property Act (LPA) 1925, s 205(1)(ix): “Land” includes … mines and
minerals …
Clarke & Greer: ‘The landowner owns the subterranean space below the surface of his land’

Limitations

Coal Industry Act 1994, s 7(3): … interests in unworked coal and coal
mines, … shall vest … in the [Coal] Authority
Petroleum Act 1998, s 2(1): Her Majesty has the exclusive right of
searching and boring for and getting petroleum to which this section
applies
s 1(1): In this Part of this Act “petroleum” - includes any mineral oil or relative
hydrocarbon and natural gas existing in its natural condition in strata; but
Gold and silver is property of the Crown
Case of Mines (1568) 1 Plowd 310
Attorney-General v Morgan (1891) 1 Ch 432

Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35

“There must obviously be some stopping point“
“But the wells that are at issue in this case, extending from about 800 feet to 2,800 feet below the surface, are far from being so deep as to reach the point of absurdity.“
“I would hold therefore that Bocardo's title extends down to the strata through
which the three wells and their casing and tubing pass“

Fixtures & Chattels

Chattel

‘a thing that a person can possess in physical form; a tangible, moveable asset’. - Practical Law

Fixture

‘chattels or goods that have been fixed to land or a building so as to become part of it. Ownership of a fixture passes with the property.’ - Practical Law
Latin maxim: quicquid plantatur solo, solo cedit (‘whatever is attached to the soil
becomes a part of it’)

Fixture & Chattel: Important Contexts

sale of land: fixtures pass with the land, chattels do not — Buckland v Butterfield (1820) 2 Brod and Bing 54
mortgage: fixtures form part of the mortgagee’s security, chattels do not

Fixtures & Chattels in Statute

the presumption that fixtures pass with the sale of the land is specified by Law of Property Act (LPA) 1925, s 62
s 62(1) A conveyance of land shall be deemed to include and shall by virtue of this Act
operate to convey, with the land, all buildings … [and] fixtures …
s 62(2) A conveyance of land, having houses or other buildings thereon, shall be
deemed to include and shall by virtue of this Act operate to convey, with the
land, houses, or other buildings, all outhouses … fixtures, cellars … courtyards
… sewers, gutters, drains … [etc.]
s 62(4) This section [i.e s 62(1), (2)] applies only if and as far as a contrary intention is
not expressed in the conveyance [i.e. contract], and has effect subject to the
terms of the conveyance and to the provisions therein contained

Fixtures & Chattel when Conveyancing

to avoid disputes and difficulties,it is usually ensured in the contract of sale which items are for sale and which aren’t
Taylor v Hamer [2002] EWCA Civ 1130, Arden LJ: ‘In ordinary domestic conveyancing, it is common practice for the contract to make express provisions about fixtures and fittings.’

Fixture & Chattels: Tests

Holland & Hodgeson (1872):

according to Blackburn J the status of fixture or chattel depends on
degree of annexation = in what way/ how firmly the object is attached to the land
object of the annexation = the purpose for which an object has been attached to the land
annexation = the attachment to something
articles not otherwise attached to the land than by their own weight are not to be considered fixtures, unless they are explicitly eto be so
an article which is affixed to the land even slightly is to be considered as part of the land, unless it’s illustrated they were intended to be chattel

Fixture v Chattel: Cases

Leigh v Taylor [1902] AC 157

Facts

valuable tapestries werer displayed by being stretched out over a canvas and fasted on by tacks to the canvas and a framework of wood
this was then nailed the mansion walls

Outcome

it was held that the tapestries were never intended to become a part of the houses
they were simply attached to the wall to facilitate their proper display
the tapestry were therefore chattel

Degree of Annexation: Elitestone Ltd. v Morris [1997] 1 WLR 687

Facts

Mr Morris lived in a bungalow that was placed on land owned by Elitestone Ltd.
The bungalow rested on concrete pillars but was not physically attached to the land.
Morris claimed he was a statutory tenant under the Rent Acts, which would give him protection from eviction.
Elitestone argued the bungalow was a chattel (a movable item), not part of the land — so Morris had no tenancy and could be removed.

Legal Issue

Was the bungalow a fixture (part of the land) or a chattel (movable personal property)?

Outcome

House of Lords held that the bungalow was a fixture, not a chattel.
Therefore, Morris was a statutory tenant and had legal protection.
The court emphasized that the degree and purpose of annexation were key to deciding whether something is part of the land.

Ratio Decidendi

the bungalow was not designed to be moved and was essentially part of the realty.
- The test is not just physical attachment, but whether removal would destroy or damage the structure or land.

Dictum

If a structure is intended to be a permanent part of the land, it becomes a fixture, even if not physically attached. — Lord Lloyd

Object & Purpose of Annexation: D’Eyncourt v Gregory (1866) LR 3 Eq 382

Facts

there was a dispute over a number of free standing items including carved figures, marble vases, stone lions and garden seats
the dispute arose after the property changed hands, and the new owner claimed the items as part of the estate
though they were not physically attached to the building — they were placed as so to complement the architecture and overall design

Legal Question

whether the items were chattel of fixtures

Outcome

court held the items were fixtures as they were seen to form a part of the overall architectural design of the property

Ratio Decidendi

court looked at the object and purpose of annexation
if the items were meant to enhance the property’s value and appearance permanently, they were deemed fixtures

Dictums

Items may be considered fixtures if they are integral to the design and character of the building, even without physical attachment. — Lord Romilly MR