Pollys Claim to the Potted Beds, the Tree, and the Television Aerial - Essay Example

Introduction to the Law of Property The issues that concern this scenario are those of attachments to land and the rights of purchasers of land to fixtures, trees, woods, etc installed by the previous owner. The facts also consider the difference in preference of title to lost property which is founded by someone other than the landowner. It also raises issues of easements that may bind successful owners of servient tenements in favor of adjacent dominant tenements. Polly’s claim to the potted beds, the tree, and the television aerial Polly may have a claim against Sophie with regards to the fixtures attached to the land that were present at the time the deal was struck. We are told that Sophie’s property comprised embedded plants, a pear tree, and a television aerial all of which were present at the time Polly viewed the property and purchased it. Since they were removed in the transition of Polly moving in, Polly may claim a right of ownership to them under the general principles of common law relating to fixtures and chattels. The traditional view of law in this regard states that anything attached to the land in question is considered part of the land (Minshall v Lloyd, 1837) (Elitestone v Morris, 1997). It is unnecessary for the items to be listed in the contract of sale that Polly signed with Sophie as having merged with it, they are treated as part of the land and thus pass automatically with the property. In legal terminology, they are referred to as fixtures. In addition, s 62 of the Law of Property Act (1925) states that “A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof” (Law of Property Act, 1925). This grants Polly a right of claim for the removed fixtures which Sophie added to her land and which thus became part of it under her ownership. Sophie may thus have to return the tree and the potted plants. The only way this right of hers can be rebutted is by virtue of exceptional circumstances or if the conveyance contract explicitly excluded certain articles so that were not included in the sale (Law of Property Act 1925, s 62). However, the facts are silent on the terms of the contract and it thus assumed that they were not excluded from the sale. As such, Sophie will be obliged to return them. The television aerial, however, may fall into a separate category of articles. While the potted plants and the tree are merged with the realty as fixtures whose ownership pass to the new purchaser, the aerial can be retained by Sophie if it is considered by law as a chattel. Chattels are personal goods which are considered separate from the land and do not pass with the property. However, the test for whether an article on the land is a chattel or a fixture depends on the degree of attachment and the purpose of attachment to the land. The primary test to establish the difference between a chattel and a fixture would be with regards to the degree of attachment. In Mather v Fraser (1856), it was established that an object that rests only upon its weight is a chattel. Blackburn J’s words are probably the clearest definition of fixtures, “where an article is fixed by the owner of the fee, though only affixed by bolts and screws, it is to be considered a part of the land” (Holland v Hodgson, 1872). However, referring to the second limb of the test for fixtures, Blackburn J also signified that if the object’s purpose was to enhance the value of the land, it may also be considered as one. Owing to these definitions, the television aerial could be deemed a fixture, since it is not resting on its own weight (aerials are generally attached to the roof or the chimney). However, aerials are part of television sets which are apparent chattels; even if they are installed separately from it. An analogy can be drawn with the batteries of a fixed car engine (considered to be chattels) as opposed to the fixed car engine itself (fixture) found on the land involved in the case of Jordan v May, 1947. Since the purpose of the battery is to enhance the use of the engine, it may be said that the aerial is also a chattel since it enhances the use of the television. However, much of this determination depends upon the degree of attachment to the land, and so the aerial must fit the definition of Blackburn J as regards to its annexation to the realty in order to be classified a fixture. It is only then that Polly will be able to claim title to it. The necklace was found on Polly’s purchased property. Since a necklace is a piece of movable personal property, it is a chattel and can thus be removed by the previous owner (Mather v Fraser , 1856). The origins of the necklace remain unknown and Polly has denied all knowledge of it. Since Polly by all counts is the legal owner of the land, she is entitled to any property found on it given that she has issued a statement of intention saying that she is to exercise control over all that was found on her property. The facts are silent in this regard. Presumably, Polly made no such statement. Thus, Fred, having taken reasonable steps to find the true owner of the property, gains possessory title to it and can be said to have a better claim. However, Polly restricted Freddie from going into the field which in turn deems him a trespasser for doing so. If Freddie was trespassing when he stumbled upon the necklace, any claims that he may lay on the found property are irrelevant and Polly has better claim to it, which, on balance, seems to be the case. Therefore, Polly is entitled to the necklace. The neighbors create another issue with the frequent use of radio-controlled planes over her land. This is an issue of easement and for the neighbors to continue flying their planes over Polly’s property, what falls to determination is whether their right to do so falls into the category of an easement. For an easement to exist it must satisfy the rules laid down in (Re Ellenborough Park, 1956). Rights of way, whether on foot or otherwise, are generally accepted as binding easements and on first count, Polly may seem to be unable to lay a claim against the neighbors. An easement may arise in favor of the neighbor over the servient land of Polly if he can prove one of the following; reasonable necessity (Millman v Ellis, 1995), an express grant made by the previous owner, or an easement arising out of prescription. The latter can be discounted as it concerns an act which has been in continuance for 20 years. Since the neighbors fly into Polly’s territory every Sunday, it can be considered a frequent act. Following the rule in Millman, it cannot be said that flying into Polly’s territory could be deemed reasonably necessary and thus an easement may not have arisen and Polly may be able to restrict the movement of the aero planes onto her land. However, if the present of an easement was reasonably obvious on inspection of the servient land by Polly, she may be bound by virtue of s 62 of the Law of Property Act 1925. On balance, it seems that the right to fly air planes on to Polly’s land could not be deemed an easement as it is merely recreational and does not benefit the land in any way (Re Ellenborough Park, 1956). Cases and Statutes Law of Property Act 1925, s.62. Elitestone v Morris, 1 W.L.R. 687 (House of Lords May 1, 1997). Holland v Hodgson, L.R. 7 C.P. 328 (Court of Exchequer Chamber May 23, 1872). Jordan v May, 1 All E.R. 231 (Court of Appeal January 14, 1947). Mather v Fraser , 69 E.R. 895 (Court of Chancery February 21, 1856). millman v ellis, 71 P. & C.R. 158 (Court of Appeal (Civil Division) March 20, 1995). Minshall v Lloyd, 150 E.R. 834 (Court of Exchequer January 1, 1837). Re Ellenborough Park, Ch. 131 [1955] 3 W.L.R 892 (Court of Appeal 1956). Electronic Sources Westlaw. Retrieved 17th April 2010 from http://www.westlaw.co.uk HYPERLINK "http://www.boundary-problems.co.uk/maineasements.htm" http://www.boundary-problems.co.uk/maineasements.htm , Retrieved 18th April, 2010. In-Brief n.d. Retrieved 18th April, 2010 from http://www.inbrief.co.uk/objects-found-on-land.htm Read More