The Order of Property - Assignment Example

THE LAW OF PROPERTY Esther has just moved into a house, having bought the freehold. She has discovered that various items which she saw when she inspected the property, and which she expected still to be there, have been removed. The contract of sale made no mention of these items being able to be removed. The items are (i) fitted carpets in the hall and the living room, (ii) an ornate electric bell formerly attached to a bell push on the front door but the wires to which have been cut and the bell removed (iii) fitted kitchen units (iv) a wooden summer house which formerly stood on a concrete platform at the bottom of the garden. She has also noticed that an apple tree in the adjoining garden has branches overhanging her own garden. She wishes to know whether she can cut the branches and whether she is entitled to keep any apples either taken from the branch or which fall from it. Joe, a friend, visited Esther and helped her clear some overgrown plants at the bottom of the garden. He found a valuable watch in the overgrowth. A. You are a trainee in a firm of solicitors consulted by Esther. Your principal has asked you to research the relevant law and report to the principal (in 1,000 words) on what are the legal principles regarding (a) whether Esther has a claim against the former owner for the removal of the items (b) what rights Esther has regarding the branches and the apples (c) which of Joe or Esther has a better claim to keep the watch.. Your principal particularly wishes to know whether there are any particularly relevant cases on these matters. Your principal will then formulate the advice to be given to Esther. B Explain precisely (in 550-600 words) what was your research strategy and how you carried out the research, giving details of the electronic searches that you made. Outside the word limit, give a bibliography of all books and databases used to carry out the research, and give a list of all cases that you consulted (whether or not actually used in Part A of your answer), with their references. In order to be able to advise Esther of her rights over the items that have been removed from the property, the branches and apples overhanging her property and the watch found in the grounds it is necessary to examine the law surrounding chattels and fixtures as well as the law regarding property ownership. In relation to the items removed by the previous owner the law regarding chattels and fixtures would be applicable1. According to the maxim of ‘quicquid plantaur solo, solo cedit2’ which translates to mean that whatever is attached to the soil becomes part of it this would mean that if the seller of a property removed plants from the garden he could be in breach of the contract. In Elitestone Ltd v Morris [1997]3 the House of Lords divided the category of fixtures into chattels that have become part and parcel of the land and other fixtures. If an item can be removed from the property without damaging the fabric of the property the court will generally regard such items as chattels4. In this particular case in relation to the carpets it is unlikely that the court would regard these as a fixture as removing them does not interfere with the fabric of the property. The bell might be regarded as a fixture as the previous owner had to cut the wires in order to remove this. It could be argued that the previous owner was not entitled to remove this as it was fixed to the property. In deciding this the courts would examine the circumstances where an owner might be entitled to remove such items. The courts decide whether the item is to be regarded as a chattel or a fixture by examining the original intention of the previous owner. Intention can be inferred from the degree and purpose of the annexation5. From the above it is not easy to ascertain whether the previous owner had led Esther to believe that the bell would be left behind6. Case law suggests the purpose of the annexation should be the decisive consideration when determining whether an item is a chattel or a fixture. In Botham v TSB Bank Plc (1996)7 Roch LJ identified four guidelines when deciding whether an item was a chattel or a fixture. He pointed out that ornamental items attached to the building simply for their display and enjoyment are prima facie chattels, and items that can be removed without damage to the building should also be regarded as chattels. In this case the applicant was claiming the right to remove certain items from the property including the kitchen units. The court stated that the units were part of the fixtures of the property and therefore the applicant was not entitled to remove them. Using this as a guideline it could be argued that the doorbell could be regarded as a fixture as the wires are left dangling after the bell has been removed. Similarly the previous owner should be made to return the kitchen units as these were fitted into the property. Although there is no specific mention of any damage having been caused by their removal the implication of these units having been ‘fitted’ implies that they have become fixtures of the property8. It is likely that the courts would regard the kitchen units as a fixture and that there would have been an implication that the previous owner would have left these behind. When considering the removal of the summerhouse the courts would examine whether this could be removed without causing damage to the fabric of the property9. In this case the removal of the summerhouse would not affect the fabric of the property, and despite the fact that this might have been a selling feature of the property it would be unlikely that the court would insist on the previous owner returning the summerhouse as its overall removal does not interfere with the structure of the property. In Wessex Reserve Forces and Cadets Association v White10 the court held that a shed that had been affixed to the property had become a fixture of that property and could not be removed, whereas the portakabins that were not attached could easily be removed without causing damage to the property and should be regarded as chattels allowing the previous owners to remove these from the land. From the above it would seem that the previous owner would be entitled to remove the carpets and the summerhouse, but the removal of the bell and the kitchen units would not be lawful and Esther should be able to claim for either the return of these items or compensation for the removal. When considering the matter concerning the branches that are overhanging the garden and the apples on that are on those branches or fall from the branches it is necessary to consider the law regarding the right to pruning of a neighbour’s tree. Under UK legislation if branches are overhanging a neighbour’s garden they are entitled to prune these so long as they return the branches. It is not legal to enter a neighbour’s property and cut down the trees. Such action could result in charges for trespass and criminal damage. In Davey v Harrow Corp11 the court stated that the neighbour whose property is encroached by the branches is entitled to cut the overhanging branches without notice to the owner of the trees. The court stated that the neighbour would only be entitled to cut the branches and would not be entitled to retain anything cut from the tree. In R v Jones & others12 the defendants were found guilty of trespass and criminal damage after entering onto land that belonged to the Air Force and causing criminal damage to property. In Hamilton v Weston13 the appellant brought an action for trespass against the respondent for cutting down the trees on the border of the properties. The appellant was unsuccessful as the deeds showed that the trees were on the respondents land and he was entitled to do whatever he wanted with the trees. If Esther does prune the trees without the permission of the neighbour she might face charges for criminal damage. This would especially be the case if the trees were protected by a preservation order as was the case in R. v Newcastle under Lyme Magistrates Court Ex p. Coupe Mark14 where the court held that the cutting down of the trees in breach of a preservation order amounted to criminal damage and the defendant was found guilty. Similarly in R v Shepherd15 the defendant was found guilty of criminal damage after cutting down trees without the owner’s permission. If the trees obstructed light onto Esther’s property the courts have on occasion allowed the person affected to prune the trees. On occasions the court have held a right exists where something on a neighbouring land obstructs the light in a greenhouse16. However, the person asserting the right must have had enjoyment of such light for a period of twenty years. In this particular case there is no suggestion that the tree interferes with the light in the property owned by Esther so it would be unlikely for her to be able to rely on this. From this it would seem that Esther would be entitled to remove the branches overhanging her property so long as the tree was not subject to a preservation order. She would not be entitled to keep the branches or any of the apples that were removed or had fallen from the tree as these rightly belong to the neighbour which would mean that she would have to return these to the neighbour. When considering the watch found in the garden it is necessary to examine the law regarding ownership of property. Generally items found become the property of the finder subject to a claim by the rightful owner. Where the owner cannot be located these become the property of the person who owns the land17. The courts have traditionally held that the ownership of items found on land belongs to the owner of the land unless anyone else has good claim to ownership of that item18, this is despite the ruling given in Bridges v. Hawkesworth19 where the court held that the finder of the item should be regarded as the owner of that item. This would mean in this case that Esther would be entitled to the watch. Research Strategy In order to answer the above I researched the law in regard to chattels and fixtures and then using Westlaw accessed cases where the courts had been asked to determine whether items should be regarded as chattels or fixtures. The aim of this was to find some recent cases on this subject as most of the cases in the text books I was accessing were fairly old cases. When doing the research I looked for cases where the courts had decided that the items could be regarded as chattels as well as cases where this was not the case. From this I was able to conclude that certain items were more likely to be regarded as fixtures and therefore the previous owner ought to be made to return the items or to compensate Esther for the items that have been taken. In the first instance I relied on the textbooks listed to ascertain the way in which chattels and fixtures are defined and then supported this with case law. Having dealt with this area I then went on to consider the situation with regard to the pruning of the trees. I was able to find a number of cases which were similar through a search on Westlaw where I used key words in the search box. Many of these cases referred to tree preservation orders which in this case would not be applicable, however for completeness I used some of this material to demonstrate how Esther might face difficulties pruning the tree if such an order were on the tree. For the final section I looked at the rules regarding finders. This proved slightly difficult in that most of the cases on Westlaw were concerned with the finding of antiquities. I therefore went on the internet and did a general search in relation to the law regarding ownership of found property. This led me to the case of City of London Corp v Appleyard. This case and others mentioned in the court report all seemed to suggest that the owner of the land should become the rightful owner of the found property unless the real owner of the property can be identified. This was despite the case of Bridges v. Hawkesworth where the courts allowed the finder to keep the money that had been found. I also used www.bailli.org for cases on these areas although this site was not as useful as Westlaw. Many of the resources I used cited the same case law. I could not find any journals on the web or in the library to assist. Bibliography Ashburner, W, Principles of Equity, 2nd Ed, 1933, Butterworths Bryn Perrins, Understanding Land Law, 3rd Ed, 200, Cavendish Publishing Ltd Civil Procedure, The White Book, Volumes 1 & 2, 2002, Sweet & Maxwell Cockburn, T & Shirley, M Equity in a Nutshell, 2005, Lawbook Co Dixon, M. Modern Land Law, 5th Ed, 2005, Cavendish  Glover, N & Todd, P, Inferring share of interest in home: Midland Bank v Cooke, 1995] 4 Web JCLI 28 September 1995. Gravells, N P, Land Law Text and Materials, 2nd Ed, 1999, Sweet and Maxwell Gray, K & Gray, S, Elements of Land Law, 4th Ed, 2005, Oxford University Press Harris, P, An introduction to Law, 4th Ed, 1995, Butterworths Hayton, D J , Commentary and Cases on The Law of Trusts and equitable Remedies, 11th Ed, 2001, Sweet & Maxwell Holdsworth, W, History of English Law, 7th Ed, 1956, Mathuen & Co Ltd Pearce, R & Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed, 1998, Butterworths Slapper, G & Kelly, D, The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd Solicitors Journal, 13 September 2002, p801 Thomas, M, Statutes on Property Law, 8th Ed, 2001, Blackstone’s Zander, M, The Law-Making Process, 3rd Ed, 1988, Weidenfield & Nicolson http://www.landregistry.gov.uk http://www.propertylawuk.net www.bailli.org www.opsi.gov.uk www.westlaw.ac.uk Read More