Legal Conception of Land under English Common Law - Coursework Example

? Land Law Case Study Scenario Terrance/Theresa Terri Staines -and- Leemond/Leah Lee Vowles submission Introduction Land law is concerned with the bundle of rights persons may exclusively have in time over a given situation. It defines the range of functions persons may exercise in given situations at a given time, the so called functional theory of property. The idea of property in land is a consequence of social evolution regardless of the origin of the property and the legal system recognizes a category of rights relating to a property. Property law declares what society regards as property, it creates or constitutes property rights, defines the legal incidence of those rights i.e. their content, regulates the dynamics of property rights and prescribes the conditions for the availability of the rights.1 Property in land The legal conception of land under English Common Law is expressed in the maxim. Cujus est solum, ejus est usque ad coelum et ad inferos. Land embraces not just the physical straturm but fixtures, water and all things found in the aerospace above the geospace. Kelsen v Imperial Tobacco Co. – 1957 2 Q.B 334.2 In the case before us there are two main issues to be determined in this scenario. First matter is erected fence which was done by Terri Staines thatleads to the front of the garage which partially divides off the property from that of Lee Vowles’. And the other one is the fence which is going to be erected by Lee Vowle. The case scenario indicates that the issues are parts of a dispute which has begun due to an undetermined boundary. In the precedent of ACCO Properties Ltd v Severn & Anor [2011] EWHC 1362(Ch) Simon Barker QJ set out the principles on determining boundary lines in Paragraph 11. Starting from the registered title plan, it only indicates the general boundary3, and there is no physical boundary4. Given that it does not bring any lucidity then the extrinsic substantiation should be taken into account which was existed on the land when the partitioning conveyance was executed. There was a small cobbled5 area about equidistant between the two properties; unfortunately the cobbled area was removed before the sale to the predecessor of Terri. This indication is not sufficient to determine the boundary. And again it is mentioned that the land was sold to the predecessors in the title of Lee and Terri, and registered with the local land registry, Land Registration Act2002 (LRA). In bold property in land means the exclusive control of the soil everything up to the sky and down to centre of the earth. In that case every interest in land is registered and operated under a particular statute. To exemplify, registration is mainly done to minimize the friction in the society through granting ownership to particular person(s), creating various interest over land (lease hold & freehold) as well as conveyancy.6 Therefore, this applies to Terri Staines, and Lee Vowles who derivatively acquired their ownership of title from the original predecessors in voluntary sale.7 In contrast, Thorpe Ltd acquired his/her ownership by asserting original claim on derelict land which had not been own by anyone.8 However, the degree of control or of enjoyment an individual or community may have over land varies with the nature of the rights vested. Terri Staines’ verses Lee Vowles’ land and Thorpe Ltd. This Case translates to (Trespass to land) Lee complains that Terri erected his fence encroaching into his /her land in 1996. Besides, whenever Terri Staines’s friends and relatives pay him a visit they often park their cars partly across his/her driveway which means there is difficulty reversing the car out on Lee Vowles’s part. This proves that Lee’s right of possession and enjoyment of his/her property has been disturbed or interfered with “Res ipsa loquitor”.9 The most obvious example is unauthorized walking upon the plaintiff’s land or going into the buildings upon it, but it is equally trespass to throw things on the plaintiffs land or allow the puppy to stray on it. Although the boundary is uncertain the picture diagram of the plots indicates some significant facts. The erected fence is constituted by unjustifiable interference with the possession of land. Trespass to land is not criminal in the absence of some special statute, which makes it so that is local land registry and enforceable per se Gilbert v Stone.10 Since trespass to land involves interference with possession, it is necessary that the Thorpe Ltd proves possession to the land. Mere physical presence on the land or the user or de facto control of it does not amount to possession sufficient to bring an action of trespass. If Thorpe Ltd voluntarily through his/her own act or through the operation of law sold that land to Total Ltd then the title will be transferred genuinely on view that he/she acquired it by asserting an original claim over it. And therefore Total Ltd will be allowed to bring a legal proceeding in court of law. For instance, a lessor of land gives up possession to his tenant so that the tenant alone can bring an action for trespass. The fence to be erected by Lee Vowles in February 2013 The Mess & Bottle Partnership who represent Lee responded to Terri giving the ultimatum that the fence erected in 1996 be removed at least by February 2013 or else legal action will be constituted in solving the matter. On my view, it would be good for Terri to take legal course as indicated by these aggrieved parties in determining the true boundary in reference to the original plan dividing the properties before the sale by predecessors. Moreover, he/she could also apply for an injunction to stop Lee in carrying his/her proposed fencing till the matter is determined fully. If this is done through mediation then the true boundary will be found based on the available evidence and their relationship will be amended for harmony to coexist as neighbours. On the other hand my advice to Lee, if you feel that your right which is entitle to this land has been infringed the sue Terri for, Damages to recover monetary compensation with regard to tress pass to your land the extent to which the court will determine on the effect of the act on the value of the land in question, Ejection based on the court order for the removal of erected fence.11 All the remedies above could also apply to Total Ltd. Bibliography Bogart, D. B., & Makdisi, J. (2009). Inside property law: What matters and why. New York: Aspen Publishers/Wolters Kluwer Law & Business. Bruce, J. W., & World Bank Group. (2006). Land law reform: Achieving development policy objectives. Washington, D.C: World Bank. Butt, P. J. (2009). Land law. Pyrmont, N.S.W: Thomson Reuters. Cooke, E. (2012). Land law. Oxford, U.K: Oxford University Press. Gray, K. J., & Gray, S. F. (2007). Land law. Oxford: Oxford University Press. Holdsworth, W. S. (1935). An historical introduction to the land law. London: Oxford University Press. McFarlane, B., Hopkins, N. S., & Nield, S. (2012). Land law: Text, cases, and materials. Oxford, U.K: Oxford University Press. Riddall, J. G. (2003). Land law. London [u.a.: LexisNexis. Sexton, R., & Bogusz, B. (2011). Land law: Text, cases, and materials. Oxford: Oxford University Press. Stevens, J., Pearce, R. A., & Jackson, N. (2008). Land law. London: Sweet & Maxwell. Read More