PSY 005 Lecture Notes - Lecture 24: Hereditament, Advowson, Intestacy
14 Sep 2020
School
Department
Course
Professor
Lecture 1- Introduction and definition of land
What is Property (Land)?
Property also includes rights over assets. There are more restrictive rights over land than other
simpler assets such as a chocolate bar.
What makes land special?
• Permanence
• Uniqueness
• Recovery of the thing (chattels not always recoverable, instead receive compensation)
• Contracts forcing transfer on breach
• Capacity for multiple simultaneous use eg. University halls. Landlord’s rights and tenants’
rights. Co-ownership of a home.
• Social importance – including human rights, eg Art 8 right to private and family life
• Limited availability (adverse possession)- squatters rights.
• Special rules for acquisition/transfer ownership of land. Mortgage- gives lender certain
property rights but not ownership.
Entick v Carrington [1765] EWHC KB J98- ‘…our law holds the property of every man so sacred, that
no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser,
though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by
law.’ Lord Camden.
Definition of Land
A statutory definition of ‘land’:
S205 (1)(ix) Law of Property Act 1925
“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the
surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any
other way) and other corporeal hereditaments (soil, etc); also a manor, an advowson, and a rent and
other incorporeal hereditaments (rights you cannot touch), and an easement, right, privilege, or
benefit in, over, or derived from land;. . . and “mines and minerals” include any strata or seam of
minerals or substances in or under any land, and powers of working and getting the same. . .; and
“manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real
property which on an intestacy occurring before the commencement of this Act might have
devolved upon an heir
What is Property?
Property is:
• An actual item OR
o Corporeal hereditaments
• Rights that you can exercise over that item
o Incorporeal hereditaments
What is a property right?
Lecture 1- Introduction and definition of land
• A right that exists in relation to a resource
• A property right binds the world at large
Property rights are in rem- real, bind the world.
Personal rights are in personam- only bind parties to the creation of that right.
Categories of Property:
• REAL Property (realty)
= Freehold land only
• PERSONAL Property (personalty)
= Leasehold land; AND
= Chattels (things ON the land; e.g carpets & curtains etc.)
What constitutes land?
s.205(1)(ix) Law of Property Act 1925 [LPA 1925] - Legal Definition
What actually
belongs to
you?
Traditionally =
above to the
heavens &
below to the
earth’s core.
Incursion into
either=
trespass.
Nowadays=
Airspace-
UPPER Stratum:
• Bernstein v Skyviews [1978]- Owner wished to prevent aerial photograph of home. Ct held:
balance of individual’s rights v those of general public in the use of airspace. Rights of owner
in the airspace above his land restricted to such height as was necessary for the ordinary use
and enjoyment of his land … above that height he had no greater rights in the airspace than
any other member of the public. [Griffiths J]
Land
Not land
Corporeal hereditament
Incorporeal hereditament
1 House
2 Land
3 Garage
4 Cars
5 Coal
6 Fishing rights
7 Right of Way
Lecture 1- Introduction and definition of land
• Statute- Civil Aviation Act 1982 - limits right to sue in trespass for infringement
of airspace (s.76) - owner cannot take action if infringement is at a reasonable height. So,
not possible to sue airplanes or satellites.
Can Human Rights assist?
• Article 8 - right to respect for private and family life, and home
• N.B. ONLY a QUALIFIED Right
-No interference except in accordance with law and if necessary in a democratic society
(national security/ public safety/ economic well-being etc.)
• Hatton v UK [2003] 37 EHRR- Mr H applied to European Court of Human Rights [ECtHR] -
claimed Heathrow night flights = in breach of Art 8. ECtHR held: ec. benefit to UK in
maintaining a full service to London from distant airports outweighed sleep disturbance to
small no. of people affected. Measure was proportionate & Art 8 rights not infringed.
Airspace- LOWER Stratum:
• Kelsen v Imperial Tobacco [1957]- IT erected a sign which extended 8 inches into K’s land. K
sought injunction/ damages for trespass of airspace. Ct Held - incursion into landowners
airspace within a reasonable height gives rise to a trespass - awarded damages
o Grant of injuction is discretionary remedy
• Laiqat v Majid [2005]- Extractor fan projecting into claimants land by 75 cm & at height of
4.5 metres = a trespass
Resources under your land?
• Owner not entitled to all minerals under his land
• Coal, Oil, natural gas - covered by Statute (Coal Industry Act 1994, Petroleum Production Act
1934)
• At Common Law - Crown is entitled to all mines of gold and silver (Case of Mines [1586])
• Bocardo SA v Star Energy UK Onshore Ltd [2010]- Star ran petroleum pipelines under B’s land
w/o B’s knowledge or permission. Star had not obtained any statutory rights in respect of
the pipelines (with the attendant pay’t of compensation). B claimed trespass/ damages. SC
held: Old maxim that landowner owns everything down to earth’s centre was not obsolete
as a proposition of law. Owner of the surface of land owns the strata below it, including any
minerals found there, unless they belonged to another party either at common law or by
statute.
Objects found on/under Surface:
True owner?
• Moffat v Kazana [1969]- Biscuit tin containing ££ hidden in attic. Owner died and house sold
to finder [F] who found tin 3 years later. Deceased’s family claimed ££. Ct held: F under
duty take reasonable steps to trace the true owner e.g. advertise the find. As F had not
complied with this duty, awarded ££ to family.
Objects found ON the land:
Document Summary
There are more restrictive rights over land than other simpler assets such as a chocolate bar. What makes land special: permanence, uniqueness, recovery of the thing (chattels not always recoverable, instead receive compensation, contracts forcing transfer on breach, capacity for multiple simultaneous use eg. university halls. Social importance including human rights, eg art 8 right to private and family life. Mortgage- gives lender certain property rights but not ownership. Manor includes a lordship, and reputed manor or lordship; and hereditament means any real property which on an intestacy occurring before the commencement of this act might have devolved upon an heir. Property is: an actual item or, corporeal hereditaments, rights that you can exercise over that item. Lecture 1- introduction and definition of land: a right that exists in relation to a resource, a property right binds the world at large. Property rights are in rem- real, bind the world.
