Property Law Notes
What is Property?
Incidents of Ownership
Use
Possession
Management
Income
Capital
Security
Transmissibility
Absence of Term
Duty to Prevent Harm
Liability to Execution
Residuary
Property rights are not personal rights
In rem – against people in general
In personam – against a determinable person
Categorisation of Property
Real (Land)
Personal (Chattels)
Land as the Subject Matter of Property
Land (and the rights relating thereto) can be “owned” by private individuals, public and private corporations, or by the State itself.
Section 3 LCLRA 2009 defines land as:
(a) any estate or interest in or over land, whether corporeal or incorporeal
(b) mines, minerals and other substances in the substratum below the surface
(c) land covered by water
(d) buildings or structures of any kind on land and any part of them
(e) the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace
Section 71 LCLRA provides that a conveyance of land will convey all buildings, commons, ditches, drains, erections, fences, fixtures, hedges, water, watercourses and other features forming part of the land.
Physical limitations of land gave rise to the old common law maxim:
‘the owner of the soil also owns as far as the heavens above and below to the centre of the earth’
Reflective of reality of land law?
Maxim curtailed at various stages by both common law and statute e.g. compulsorily purchase by the State for public use against wishes of the titular owner - Section 212 Planning and Development Act 2000.
Buildings
General Principles: ‘A building becomes part of the ground’/‘Whatever is attached to the ground becomes part of it’
Two tests used to decide whether a structure has become annexed to the freehold.
Traditionally, the main test was the degree of physical attachment.
But now the purpose or the intention of the annexation is important.
Elitestone Ltd v Morris [1997] 1 WLR 687, House of Lords (HoL)
Fixtures
An item that is deemed to be a fixture is part of the land.
General principle: ‘Whatever is attached to the ground becomes part of it’
If a house is sold, fixtures pass automatically in the sale, unless excluded from the contract.
Fixtures are subject to the mortgage (if there is one over the property).
As with buildings, degree of annexation and purpose is important.
Holland v Hodgson (1872) LR 7 CP 328 Court of the Exchequer
Re Moormac Developments Ltd [2013] IEHC 572
Airspace
Ownership of airspace above land only vests in the owner of the land to a reasonable extent.
The Air Navigation and Transport Act 1936, s 55, as amended states that no action for nuisance or trespass can be taken where an aircraft flies over property at a height above the ground which is reasonable.
Loss or damage caused by anything falling from an aircraft is a trespass.
Bernstein v Skyviews Ltd [1978] QB 479
Subsoil
Ownership of subsoil vests in landowner to the extent that it is necessary for the reasonable enjoyment of the land.
Mines and minerals vest in the State (Article 10(2) of the Constitution).
Objects found below soil vest in the landowner – Elwes v. Brigg.
Objects of archeological importance will vest in the State – (Webb v. Ireland & National Monuments Act 1994).
Water Rights
Owner of the land through which a river flows (riparian owner) owns the riverbank and as far as the centre of the river.
The water itself cannot be directly owned.
The riparian owner has no absolute right to the water flowing in a defined channel, but they do have ‘right of user’.
Ordinary use of the water – cannot destroy use for others downstream.
Foreshore
Land between the high and low water marks.
Ownership of the foreshore vests in the State (Article 10 of the Constitution and the Foreshore Act 1933).
The right to all minerals under the foreshore vests in the State (section 2(1) Foreshore Act 1933 and Foreshore (Amendment) Act 1992).
Flora & Fauna
All trees, shrubs, hedges, bushes and flowing plants are property that are part of the land.
The occupier of land over which branches of a neighbour’s tree hang has the right to cut the branches encroaching in their land.
Wild Animals (ferae naturae) remain free. Once they are tamed and confined, captured or killed they become personal property.
If a person trespasses on another’s land and kills game, the game becomes the property of the landowner.
No such thing as absolute ownership!
Property rights can be functionally understood as rights (and corollary obligations) which are recognised by the law and upheld by our courts.
The nature of the rights which arise in relation to property can extend to intangible matters – i.e. rights of way.
Property rights exist in rem, rather than in personam.
“Ownership” of land in this jurisdiction cannot be said to be absolute (even an unencumbered fee simple).
State can compulsory purchase land subject to compensation irrespective of the estate or interest someone has in the property- Section 212 Planning and Development Act 2000.
This begs the question, what then are we talking about whenever we discuss the law in relation to land ownership? The answer is: we do not own land itself but, rather, have ownership of “estates” or “interests” in land.
Property law involves the study of those estates and interests in land as well as various rights and liabilities affecting land.
Are Finders 'Keepers'?
Law of Finding
Relativity of title – hierarchy of owners.
True owner will always have strongest claim to an object.
In the absence of a true owner – the default rule is first possession.
Armory v. Delamirie (1722)
Hanna v. Peel (1945)
Finder maintains possession against all but the true owner!
Parker v. British Airways [1982] 1 All ER 834
Exercise of control by the landowner? Landowner can assert better claim against finder in cases where they have exercised sufficient control over the land.
Distinction between objects found above the soil v. objects found below the soil
Elwes v. Brigg (1886) 33 Ch. D 562
Landowners have stronger claim to objects found below soil.
Treasure Trove
Originally, treasure trove was covered by a royal prerogative.
Crown had the right to ownership of buried objects that were made substantially of gold or silver.
The items had to be buried with the intention that they would be recovered (as opposed to having been abandoned or buried within a grave).
Attorney General v Trustees of the British Museum (1903)
In addition, they had to have had no known owner.
This right was secondary to anyone who could demonstrate that they own the title to the goods.
It was an offense on the part of the finder to conceal the treasure trove.
It was practice to grant a reward to the finder, but this was an ex gratia payment.
Webb v. Ireland [1988] IR 353
In 1980, Michael Webb and his son Michael, discovered a hoard of objects while using metal detectors in Co. Tipperary.
This was a hugely significant find of early Christian metalwork and is now known as the Derrynaflan Hoard.
Webbs reported the find to the National Museam and were told that they would be ‘honorably treated’. They were offered £10,000 which they did not accept.
They asserted ownership over the objects and sued for their possession. The State in opposition argued that the objects were treasure trove and ownership thereof vested in the nation.
High Court: the State argued that it had title to the objects because:
(1) they were treasure trove and
(2) the superior title belonged to the landowners, and this had been transferred to the State.
High Court held in favour of Webbs. Blayney J held:
State was a bailee and could not subsequently rely on a better title than that
doctrine of treasure trove that stemmed from royal prerogative had not survived the 1937 Constitution
Supreme Court: the decision was reversed and held in favour of the State
Held that the doctrine of treasure trove along with its scope under the common law applied in the Republic as part of the sovereign rights of the people established by the 1937 Constitution
Finlay CJ went on to describe a new constitutional principle, that is remarkably akin to the royal prerogative of treasure trove:
Relying on Arts 5 (Ireland is a sovereign, independent, democratic State); Art 10.1 (ownership of natural resources) and Art 10.3 (State property), he found that objects of importance for national heritage and knowledge belong to the people of Ireland and are not the exclusive property of the finders (in the event that there is no known owner)
Reward of £25000 awarded to finders – because they were told they would be honorably treated, and this created a legitimate expectation of a reward
National Monuments Act 1994 (s. 2)
Ownership of archaeological objects found with no known owner vests in the State (s. 5)
Offence to fail to report possession of an archaeological object to the State or to fail to provide information (s. 7)
Offence to be in possession of a ‘detection device’ at the site of a monument /archaeological area (without a license from the Minister)
Those seeking to excavate historical sites must receive detection consent in the form of a licence from the Minister for Arts, Culture and the Gaeltacht or Commissioner of Public Works (s. 10)
Reward to the finder, landowner or occupier of the land if the object is retained
(DISCRETIONARY: Re: La Lavia) (s. 14).
‘Archaeological object’ includes chattels other than gold or silver.
Consider the Following Scenario:
Taylor and Travis are interested in archaeology and purchase a metal detector from their local store. They enter onto Sabrina’s land without permission and go hunting for objects of value. They have a particularly successful day and find the following objects:
There is a pheasant shoot on the land at the time and one of the birds is shot and lands dead at Taylors feet whereupon she seizes it and puts it into her bag.
Travis discovers a purse lying in the field with a large quantity of cash in it. There is also a passport in the purse indicating that it belongs to a Claire McGovern.
Taylor decides to go swimming and in a small lake, she finds a beautiful old Celtic Brooch at the bottom lying in mud.
They also find an old wooden chair in a dumpster which Travis fishes out and brings home, believing he can repaint and make use of it.
On the way home, Taylor sees a brand new iPhone on the street and picks it up.
Questions to Consider:
What is the strength of Taylor and Travis’ claim to ownership of each of the found objects?
Is the pheasant in anyone’s possession when in the wild? What does it depend on?
If Taylor took the purse off Travis after he found it, can he make her return it (i.e. who has the better title as between the two of them)? Does Travis have an obligation to search for Claire if he is to claim it as his?
As between Taylor and Travis who has the better claim to the brooch? Might anyone else have a claim besides the true owner? What does it depend on?
Has ownership of the wooden chair been abandoned?
Who has the best claim to the iPhone?
Are finders keepers? What are the exceptions to this rule?
Summary of Finding:
Objects found above the soil
Finder maintains possession over all but true owner
Armory v. Delamirie
Landowner will have stronger claim than finder where they manifest control over the property
Parker v. British Airways
Objects found below soil
Landowner has strongest claim to objects found below soil
Elwes v. Brigg
Objects of archeological importance
State will have strongest claim to objects deemed to be of archeological importance
Webb v. Ireland
National Monuments Act 1994
** in every instance, if the true owner can be found they will have the superior claim
Some other useful cases on finding:
Hibbert v. McKiernan [1948] 2 KB 142
Waverley Borough Council v Fletcher [1995] 4 All ER 756
Leigh v Taylor [1902] AC 157
South Staffordshire Water Co v Sharman [1896]
Questions to consider when revising this topic:
Can you identify different characteristics of ownership?
What’s the difference between real and personal property?
What is meant by a right ‘in rem’?
When objects are found above soil – who has the strongest claim? What does this depend on?
When objects are found below soil – who has the strongest claim? What does this depend on?
Who has the strongest claim to archaeological objects of national importance? What legislation is relevant in this respect?