Introduction to Land

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Introduction to land

'Land law is merely an arena in which the central dramas of human existence are played out against a backdrop of abstract proprietary concepts'. 'Land provides the physical base for all human activity.' Blackstone- Land is a word of 'a very extensive signification'. 

5 dimensions of land- Physical surface is the first two. LPA 1925 s205 (1)(ix)- the big paragraph on the definition of land. 

Corporeal and incorporeal hereditaments.

3rd dimension- 'he who owns the land owns everything reaching up to the very heavens and down to the depths of the earth.' (not completely accurate, everything needs to be reasonable.) 

Rights below/ 'depths of the earth'- things found on or in the land. Parker v British Airways Board 1982- man found bracelet on the floor of BA's lounge. Couldnt find true owner, whose was it? 'As the true owner has never come forwards it is a case of finders keepers.' 

A test of intention- Waverly Borough Council v Fletcher 1996- man found brooch in public path in the ground. 'An obligation in land is to be treated as an integral part of the realty as against all but the true owner.' 

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Introduction to land

Bocardo SA v Star Energy 2010- 'I think that the reasons for holding that the maxim has no place in the modern world as regards what goes on below the surface, even in England, are not by any means as compelling as they are in relation to the use of airspace.' 

Pragmatic distinction between upper division of airspace and lower division of airspace: effective control necessary for the landowners ordinary use/enjoyment of land. Kelsen v Imperial Tabacco 1957- shop sign hanging over another air space.

Bernstein v Skyviews 1978- claimed plane flying over his house was trespassing. 'If applied literally it is a fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden.' 'The balance is best struck in our present society by restricting the rights of an owner in the air space above his land to a height as is necessary for the ordinary use and enjoyment of his land... above that height he has no greater rights to the air space than any other member of public.'

Bocardo SA v Star Energy 2010- 'the simple notion that a landowner is the proprietor of a column or cylinder of land that stretches down to the centre of the earth and upwards indefinitely into outer space is plainly no longer tenable.' 

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Introduction to land

Dimension 4- Tenures and estates- they are time. Dont have a conception of direct ownership of land itself. Theoretically the Crown owns all land (doctrine of tenure).

Doctrine of estate- series of intangible rights to explain entitlement to land. Right to possession granted for a period of time. Walsingham's Case 1573- 'the land itself is one thing and the estate in the land another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates which are no more than diversities of time.' 

Land is pemanent which is why we use slices of time. Used to have 3 different freehold estates in common law. Fee simple- Walsinghams case- 'he who has a fee simple in land has a time in the land without end or the land for time without end.' Sometimes called a freehold estate. 

Fee tail- Sch 1 TOLATA 1996- legislative prohibition of creation of new fee tails. This was an interest in land which lets owner use land for his life and his lineal decendants. 

Life estate- exists for your life and on death reverts to a superior estate owner. Leasehold estates- LPA 1925 s1(1). consolidated, restricted estates to 2. Fee simple and leasehold. 

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Introduction to land

Dimension 5- common law and equity. Quality of estate/right as opposed to content. Equity- system of law developed to remedy defects in Common Law. 

Judicature Acts 1873 and 1875. s50 Senior Courts Act 1981- power to award common law and equitable remedies. S49(1) SCA 1981- where equity and law conflict, equity prevails. 

Equity- body of law based on the notion of conscience. Equitys creation- the trust. Property held for the benefit of another. Separation of legal and equitable ownership. Trustees (holding legal estate) and beneficiaries (holding equitable estate). 

All co-owned land takes place behind a trust. Creation of trusts- 1) express in writing or evidenced- LPA s53(1)(b). 2) resulting- contribution to purchase price 3) constructive- intention to share ownership. 

Legal right= form. Equitable rights=substance. 

In unregistered land only- legal rights bind the world. Equitable rights enforceable against all persons except 'a bona fide purchaser of a legal estate for value without notice.' (doctrine of notice.)

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Introduction to land

Doctrine of notice applies to unregistered land only. Registered land: priority is now governed by LRA 2002. 95% of land in UK is registered and course is based on this. 

Land is- permanent, scarce and durable, unique, flexible resource, capable of meeting important social needs, and all of these characteristics separate land out for special regulation by fundementally different legal rules. 

Property- 'few concepts are quite so fragile, so elusive, and so often misused as the notion of property.' Gray and Gray. 'In some deeper and broader sense it is the collectively defined moral baselines of the property concept which alone secure the foundations for cultural development, personal fulfilment and the enjoyment of a civilised and dignified way of life.' 

Property is absolute 'sacrosanct, oppositional, irreducible, and inviolable' vs property as a relative concept. Property is not a thing. 'Property is not a thing but a relationship one has with a thing.' 

'Property is a relationship of social and legal legitimacy existing between a person and valued resource (whether tangible or intangible.)' All property talk is value laden. 

There can be gradations of property in a resource. Zero propertiness vs maximum propertiness.

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Introduction to land

Measurign the quantum of control. 

Proprietary v Personal rights. Proprietary rights bind purchasers of land. National Provincial Bank v Ainsworth 1965- a proprietary right must be 'definable, identifiable by third parties, capable of its nature in assumption by third parties, and have some degree of permanence or stability.' 

A circular definition. It is vague. 

Key features of property- 1) property can not be arbitrarily terminated by others ECHR Protocol no1, art 1 (right to peaceful enjoyment of possessions.)

2) a right to exclude

3) right to prioritise resource.

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Gray and Gray article

'The idea of property in land'- 

  • Property is not a thing but a relationship with a thing. To claim property is to assert a strategically important degree of control over that resource. Concentration of power. Reference to a quantum of socially permissible power exercised in respect of a socially valued resource.
  • The idea of property in land oscillates ambivalently between the behavioural, the conceptual and the obligational, between competing models of property as fact, as right and as a responsibility. 
  • Property as fact- a limited form of soveriegnty over the land. Deeply instinctive self affirming sense of belonging and control. Property of leasehold characterised by the freedom to 'call the place his own.' The critical determinant of property is the mode of behaviour consciously adopted by the claimant occupier. Estate ownership is self determining and self righting. Adverse possession presumes any person in possession has a fee simple until shown they dont. Possession of land immediately generates property in it. The factum of possession depends upon showing that the claimant has asserted 'complete and exclusive physical control' over the land in question. 
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Gray and Gray article

  • Property as a right- various assortments of artificially defined jural right. World of conceptual abstraction. Political theory in the doctrine of tenure. No citizen can claim they own the physical solum merely that they own a unitary jural right in that solum. One has property in an abstract right rather than property in a physical thing. Each owns estate, not the actual land. The 1925 legislation seeks to maintain consistently the dogma that land ownership are mediated by the distribution of intangible jural entitlements interposed between persons and land. Property must come in neat, discrete prepackaged conceptual compartments. Lord Wilberforce said before a right can be property it must be 'definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.' Common law knows no absolute title, all title remains relative and essentially defeasible. Definition of property becomes self fulfilling. Modern courts are being required to mark out a spectrum of differing intensities of exclusory power, ranging from purely private zones to quasi public land, and genuinely public property. Recognition of a new contemporary morality in property relationships has been impeded rather than promoted, by a rights based analysis of property in land.
  • Property as a responsibility- isolable strands of utility or use power which combine variously as the constituent elements of any land interest. Focuses on the way that the precise balance or mix of utilties inherent in any particular land holding is subjected...
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Gray and Gray article

  • ...through state interevention, to an overreaching criteria of publically defined responsibility. Government controls ove things such as urban planning means estate ownership is constantly stripped back to bare residuum of socially permitted power over land resources. Property is no more than a defeasible privilege for the citizen. Liable to be curtailed by an interprentrating sense of civic responsibility. Due to planning permission has little entitlement to alter his land as he chooses. Vulnerable to compulsary purchase. Freyfogle- 'land use restrictions do not so much limit property rights as they promote and protect them.' The inescapable engagement with the social and moral limitations of property ensures that private property can never remain truly private and that in the end all property in land is inevitably infected with extensive public law signifcance.
  • These models do not exist in resolute opposition, they are bound together in creative tension. Essentially human institution of property reminds us of the ultimately elusive quality which still attaches to the core of the phenomenon. 
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