The Definition of Land Is Quite Multidimensional - Assignment Example

? Land Law Essay 2974Words of Table of Contents I. Introduction II. Definition of land III. The Multi-Dimensionality of land IV. Underground and space above V. Overriding interest VI. Incorporeal hereditaments VII. Lower stratum air space VIII. Lost and found objects IX. Conclusion X. Table of cases XI. Table of statutes Introduction Land is perhaps one of the most controversial and intriguing issues ever tackled in law courts due to its multi-dimensionality. The multi-dimensional nature of land is evident in the number of issues that arise in most land cases. The laws that relate to land cover the divergent aspects or dimensions of land so that peoples’ right to possess, alienate and use land are upheld. In fact, land laws also provide land owners with the rights and powers to exclude others from their land. Among the important categories of land laws are those that cover land use and ownership agreements/processes such as land leasing and renting. In most cultures therefore, there are provisions, systems and jurisdictions that register land and resolve any disputes related to land use, ownership or inheritance among others1. Most emphasized in customary and common law jurisdictions are the land rights to which individuals are entitled. Land right refers to the unchallengeable ability that the law provides for people to possess and utilize land at their discretion provided that such possession and utilization of land do not infringe on the rights of others in the society2. It is therefore imperative that land lawyers recognize and understand the meanings and extent of land, more so the multi-dimensional nature of land3. This paper explores the concept of the multi-dimensionality of land and its impacts on land lawyers understanding of land. Definition of Land The apparent importance of land even as early as the beginning of civilization has led to almost all world cultures recognizing the need to regulate its ownership and use4. Despite the origins of land laws being in ancient times, land laws remain a core component of the society even in modern times. At the start of any legal process on land issues, it is important that all those involved, particularly the lawyers, define the subject matter, which in this case is land. According to section 205 (1) (ix) of the LPA 1925, the land comprises “land of any possession or tenure and minerals and mines , any structure or part of any structure or other corporeal hereditaments ; it also includes an advowson, a manor and a rent and an easement , privilege , right or advantage in , over or enjoyed from land.” Accordingly, in legal parlance, a land includes both the corporeal and physical assets and the privileges that the owner or third parties may benefit from or over it5. The other conspicuous term in the definition of land in most statutes is ‘any tenure’. By the term land tenure are referred the two main types of ownership; leasehold and freehold, both of which refer to land in legal land issues. Freehold tenure refers to a situation in which an individual owns a piece of land forever/without end. On the other hand, leasehold ownership is a situation in which a tenant owns land for a given period (short or long but not indefinitely)6. From the two definitions, it is evident that leasehold ownership is a creation of freehold tenure. Unlike the Winter Garden Theatre (London) Limited versus Millennium Productions Limited Case of 1948, which had no term allowing the licensor to revoke the leasehold, it is important that contracts are clearly drawn in leaseholds. The Multi-Dimensionality of Land In addition to land tenure, the other important component of the definition of land is the extent of land. For instance, land is defined to include the mines and minerals therein, whether they belong to the owner of the surface of the land or not. The meaning of land thus includes both the vertical or horizontal division apart from the surface. Thus, a transfer of a land with two dimensional would have not only less value but also would have no or little meaning. The world of physical reality is being essentially related by the first three dimensions of land. However, the fourth and fifth dimensions are not dealing with the physical aspects of land but deal with the intangible interests in the land. In Newlon Housing Trust v Alsulaimen (1999), it was held that the four dimensional-nature of land is not only explained with the reference to the corporeal periphery of the land but also by reference to the period for which the interest in such land would prevail. Under the doctrine of estates, no one has the ownership in any land other than by the crown and a land owner just owns a “segment of time” in the land. Thus, under English law, a land owner does own a conceptual privilege in the land which is known as the estate in the land. A tenant may not own a physical land but only have the ownership of an intangible right which is known as estate. The fifth dimension of land relates to trust. Under a trust, the owner discards the legal ownership in an asset, and the beneficiary enjoys an enforceable equitable interest whereas the trustee holds the legal interest and fulfils the obligation7. Underground and the Space Above The maxim that ‘whoever owns land owns everything on the land up to the very heavens and down to the depths of the earth’ should guide land lawyers in defining land to cover even the space above and beneath the ground surface. Nevertheless, the rights of landowners in this are limited. Therefore, one cannot in essence own land up to the very heavens. The Bernstein of Leigh versus Skyviews and General Limited case (1978) in which the plaintiff sued a trespasser for aerially photographing his property is a good illustration of the limited ownership rights on the space above land. Judge J. Griffith, giving his judgment noted that there was no support to the assertion that the plaintiff owned the space above his property to unlimited heights. Any trespass at the heights considered necessary for landowners’ ordinary use could therefore results in court cases, injunctions or compensations8. For an illustration, if a constructor’s crane hangs on the space above a person’s land within a height considered necessary for ordinary use as in the Woolerton and Wilson Ltd versus Richard Costain Ltd Case of 1970, it may be considered a trespass, making the landowner liable for compensation or an injunction barring the trespass. This latter assertion is supported by old cases such as older cases such as Kelsen versus Imperial Tobacco Co. Ltd of 1957 in which the Court held that it is a trespass into another’s airspace if an interference is well within the height which authorities consider to be trespass, regardless whether an encroachment actually interferes or not. A similar case was the Lewvest Ltd. versus Scotia Towers Ltd of 1981 in which the arm of a constructor’s crane swung over the plaintiff’s property. The Court awarded an injunction, ordering the contractor to buy the right to use the plaintiff’s airspace if need be. Other examples are the Isenberge versus East India House Estate Co Ltd in which, the court declined to grant injunction to safeguard rights to light, the John Trenberth versus National Westminster Bank case in which, the court declined to give injunctions against rights in airspace and the Boomer versus Atlantic Cement Co Ltd case and the Cadbury Schweppes Inc v FBI Foods Ltd case where the courts did not grant injunctions for interest in confidential information which was not classified as proprietary rights. In all these cases, the courts regarded the rights to airspace, light, confidential information and rights to be free of nuisance as something inferior to property rights9. Overriding Interest Despite the fact that a property interest in land which is neither protected nor registered on the land register does not imply that it is not enforceable against registered land owners. The LRA Act of 2002 also acknowledges the notion of overriding interests. These are interest in land, which despite that they are not noticeable or appearing in the land register, are fully enforceable. Though the LRA 2002 Act has limited the range of overriding interest, such rights are still considered significant. This is applicable, especially in case of short leases, which can neither be protected by notice nor by registered or any the land is in actual occupation by an interest holder. Thus, it has become necessary to comprehend whether a third party privilege like constructive trust interest is superseding or not. It should be realized that for a genuine buyer of a property, overriding interest is a major risk. Although overriding interests are not always seen on the land register, a buyer is still liable to these overriding interests that influence the title acquired whether she/she is actually aware of them or not. Examples of the overriding interest are listed in section 70(1) of the LRA 1925. Nonetheless, only five of them are regarded as significant types of overriding interest. However, LRA 2002 has in fact, minimised the quantum of overriding and a number of insignificant overriding interests have been omitted. Incorporeal Hereditaments The word ‘hereditament’ refers to the nature of the privilege and benefits associated with the ownership of the land. It implies the concerns on the rights that people may have in land but not concerned with the buildings, soil, the trees or the grass therein. In other terms, it refers to the intangible privileges in respect of land. According to Section 205 (1) (ix) of the LPA 1925, an incorporeal hereditament is a right, an easement or benefit/privilege in or over or acquired from land10. Distinctive easements on the other hand include the right of way which a landowner X, may have on the land of another, Y. The intangible benefit of X’s right of way in Y’s land is being viewed as an integral part of X’s land, which is looked upon as an infrequent trend in English land law to combine land as fact with land as right. According to Section 187 (1) of the LPA 1925 Act, the right of easement bestowed on X is quite similar to the fixtures that have been annexed to reality. The corporeal aspect of land is however not common in the modern society. Earlier cases such as Mitchell versus Mosley of 1914 involved things that are attached to or inbuilt in the ground such as trees, buildings, subjacent minerals, and portions of the superjacent airspace. As per Section 62 of the LPA 1925, a fixture is attached to the land. In “Mitchell versus Mosley 11“, it was held that buildings built on foundations, which are embedded in the soil will be regarded as part of the reality. A fixture is considered to be the part of a land whereas a chattel is not due to its independent character. In” Telecom Auckland Ltd v Auckland12”, it was decided that a chattel keeps its independent nature as personality even when kept in secure association to the land. In deciding whether a structure become an indispensable part of the land which is solely rest upon the magnitude and the object of attachment to the land. In “Holland v Hodgson13”, Blackburn J employed two tests namely the main intent of annexation and the magnitude of annexation to decide whether it is a chattel or a fixture14. Fixtures therefore refer to all the objects that are attached to a piece of land in a manner that makes them part of the land. In many court cases involving land, buildings, fixtures and chattels, judges are always called upon to make decisions on the status or definitions of various objects whose ownership are always contested during and after land sales15. For instance, in the Hulme versus Brigham case, a printing press which stood without attachment on a piece of land was held to be a chattel. The Chelsea Yacht and Boat Club versus Pope Case of 2001 in England also illustrates the legal concept of fixtures. In the case, it was established that a houseboat, although permanently fastened, does not form part of a piece of land since the degree of occupation is insufficient. However, in Rudd versus Cinderella Rockerfellas Ltd, a floating vessel tied to the land which had a magnitude of permanence and also some advantages were derived from the vessel by the occupier, even though there was no material link between the land, and the vessel held to be a fixture. Lower Stratum Air Space The lower regions of the airspace above land can considered an integral part of real estate, making the postulation that land is essentially a physical source a false statement. In “Reilly v Booth (1890)”, it was held that such airspace is capable of lease or transfer, in “Taylor v North West Water16”, it was held that it is eligible for compulsory purchase17. A legal land owner is thus regarded to own all materials and objects entrenched or hidden within the ground, a privilege which surpasses the right of any finder who identifies the earlier unknown thing. In “Parker v British Airways Board18”, it was held that the finder of an item through excavation in another’s land would be regarded as trespass as the item being considered as an ‘integral element of the land “held by the true landlord19. Lost and Found Objects The other dimension of land that features prominently in land cases is the ownership of objects that are lost and found on/in land. An example of a case involving objects found on land is the Parker versus the British Airways Board of 1982. In this lawsuit, a passenger who had picked a bracelet and handed it to a British Airways employee sued the company when he discovered that the company had sold the bracelet. According to the passenger, he had better right to the bracelet than the British Airways had. The Court of Appeal concurred with the claimant, asserting that the bracelet was not attached to the floor of the lounge on which the passenger had found the bracelet. The case’s strength lay in the lawfulness of the presence of the claimant at the time and scene of finding the bracelet20. Conclusion This paper concurs with Gray& Gray assertion that the definition of land is quite multidimensional. Other than the first four dimensions of land which are just purely material conceptions of the physical boundaries of land, land also has a more conceptual image, which has conveyed a multi-dimensional meaning to the term land which includes the fourth and the fifth dimensions namely the doctrine of estates and equitable interest. Under English law, a land owner does possess a conceptual privilege in the land which is known as the estate in the land. A tenant may not own a physical land but only have the ownership of an intangible right which is known as estate. In case of contractual licence for the use of land, courts have issued injunction to safeguard the licensee’s interest which has been labelled as proprietary even though a licence holder is not the owner of the land .English courts have considered the right to airspace, right to light, rights in confidential information and rights to be free of nuisance as something inferior to property rights and hence refused to grant injunction to protect those rights. The LRA Act of 2002 has in addition, acknowledged the notion of overriding interests – interest in land, though not noticeable or appearing in the land registers but fully enforceable. There are enforceable vital overriding interests and property rights of a party who is in real occupation of the land, short-term legal leases and easements and profits. These are giving new definition to the term land. According to LPA, an incorporeal hereditament refers to a right, an easement or a benefit or a privilege in or over or obtained from land. Further, mines and minerals present in the land also form the part and parcel of the land. A legal owner of a land is thus regarded to own all materials and objects entrenched or hidden within the ground, a privilege which surpasses the right of any finder who identifies the earlier unknown thing. A fixture is considered to be the part of a land whereas a chattel is not due to its independent character. Hence, a lawyer should have a broader conception of land which should not restrict to its three dimensions but also should include the fourth and fifth dimension. Table 1: Land Cases S. No Cases 1 Boomer v Atlantic Cement Co Ltd 257 NE 2d 870 ( NYCA ,1970)” 2 Cadbury Schweppes Inc v FBI Foods Ltd SCR 142, 167, DLR 3 Holland v Hodgson 4 Hulme versus Brigham 18 Isenberge v East India House Estate Co Ltd {1863} 3 De G J & S23 “ 5 John Trenberth versus National Westminster Bank (1979), 39 P & CR 104” 6 Kelsen versus Imperial Tobacco Co. Ltd of 1957 7 Lewvest Ltd. versus Scotia Towers Ltd of 1981,126 DLR (3d) 239, Nfld SC”, 8 Mitchell versus Mosley of 1914 9 Newlon Housing Trust v Alsulaimen (1999), 10 Parker versus the British Airways Board of 1982. 11 Reilly v Booth (1890) 12 Rudd v Cinderella Rockerfellas Ltd EWCA Civ 529 13 Taylor v North West Water 14 Telecom Auckland Ltd v Auckland CC[1999] 1 NZLR 426 15 The Bernstein of Leigh versus Skyviews and General Limited case (1978) 16 The Chelsea Yacht and Boat Club versus Pope Case of 2001 16 Winter Garden Theatre (London) Limited versus Millennium Productions Limited Case of 1948, 17 Woolerton and Wilson Ltd versus Richard Costain Ltd Case of [1970] 1 WLR 411” Table 2: Land Statutes S. No Table of Statues Land Registration Act ,1925 (LRA) Law of Property Act,1925 (LPA) References Bray, J., Turner, C., and Martin, J. Unlocking Land Law (Unlocking the Law), Third Edition. Hodder Arnold, 2004. Cursley, J., Davys, M., and Green, K. Land Law (Palgrave Macmillan Law Masters), Sixth Edition. Palgrave Macmillan, 2009. Dixon, M. Modern Land Law, Seventh Edition. T & F Books UK, 2010. Gardner, S.An Introduction to Land Law, Second Edition.Hart Publishing, 2009. Gray, K., and Gray, S. Elements of Land Law, Fifth Edition.Oxford University Press, 2009. Gray, K., and Gray, S. Land Law, Sixth Edition.Oxford University Press, 2009. MacKenzie, J. A., and Phillips, M. Land Law, Thirteenth Edition.Oxford University Press, 2010. Maudsley, R. H., and Burn, E. H. Land Law: Cases & Materials, Ninth Edition. Oxford University Press, 2009. Meggary, R. E., and Wade, H.W.R.The Law of Real Property, Seventh Edition.Sweet & Maxwell, 2000. Smith, R. Property Law: Cases and Materials, Fourth Edition.Longman, 2009. Smith, R. Property Law, Sixth Edition. Longman, 2008. Stroud, A. Making Sense of Land Law, Second Edition.Palgrave, 2008. Read More