Multi-Dimensional Complexity and Dimensions of Land - Essay Example

LL262220 An underlying tension between the physical and the conceptual imparted a Multi-dimensional complexity to the term land (Gray & Gray 2007:2) Introduction: The definition of land in law has many concepts, which are still rather pragmatic or uncertain. The British land law has about five dimensions with much subdivisions (Gray & Gray 2007). Statutory definition according to 205(1)(ix) LPA 1925: Land includes land of any tenure, and mines and minerals. buildings or part of buildings and other corporeal heriditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; Thus the land is a physical assets and the rights the owner and others may enjoy in or over it (Dixon 2005). The definition of Land could have significant variation. Moreover, land is defined in early law in very complex language which needs strenuous deciphering.. Land comprises both of corporeal and incorporeal components. The corporeal components are the physical aspects while incorporeal are the rights enjoyed over or in respect of land. The physical components besides the piece of earth are building, trees, subjacent mineral and superjacent air space. The corporeal and noncorporeal components are known as realty to distinguish it from personalty. The latter being personal or movable property (Gray & Gray 2007). Thus in the eyes of law land is a multidimensional asset as discussed below. The dimensions of 'land' First three dimensions are land as solid, physical reality. The first two dimensions of land: it is a two dimensional piece of earth with defining contours, features and limits of jurisdiction. Which is recognised by the registrars, conveyancers, surveyors and ramblers. However this definition too does not takes into account the low water mark area in the coastline. The three mile territorial area including water constitute land. However , even outside this three mile limit the channel tunnel subsoil upto the middle of English channel is called land (Channel tunnel act 1987). Thus land includes land covered with water as well (Gray & Gray 2007). Moreover the land is not a two but three dimensional entity. 4-5The third dimension of land: A Latin maxim says that the one who owns land owns the heaven above it and the earth deep down to the centre. It certainly indicated three-dimensional nature of land but lacks practical wisdom. The indefinite extension of territory of land would mean an airplane passing over it causes trespass. Still some three-dimensional characteristics is to be accepted for land in statutory definition. A land can be held above surface and may be divided horizontally. Thus different owners can hold the titles of the land each holding a stratum of cubic surface above or below the surface layer of the earth (Gray & Gray 2007). The components of these three dimensions are (Wilkie 2006; Gray & Gray 2007; Dixon 2005): The word 'hereditament' in law means nature of right involved in ownership of land. land law is all about-not just the land (the soil, the grass, the trees, the buildings), but the rights that people may have in land. Thus, land is to be reclassified as including corporeal and incorporeal hereditaments. Ownership of land may equally include ownership of a house and ownership of a right of way over someone else's house (an incorporeal hereditament). The land law may be viewed from corporeal and incorporeal rights or by distinction between fixtures and chattels. The fee simple owner's right of air space: The owner's rights extend to such a height as is reasonably necessary for the ordinary use and enjoyment of the land. In Baron Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479, Griffith J stated that it was necessary to balance the rights of an owner to enjoy the land against the rights of the general public to take advantage of all that 'science now offers in the use of airspace'. Where there is an interference with the legitimate rights of the fee simple owner then these rights may be maintained by an action for nuisance or trespass. In Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland) Ltd [1957] 2 QB 334, the action of the defendant in allowing an advertisement to overhang the plaintiff's premises amounted to a trespass as was the action of the defendant in Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411, in allowing the jib of a crane to swing over the plaintiff's property. Under the Civil Aviation Act 1982, it is a defence to an action in trespass or nuisance for aircraft to fly at such a height which is reasonable under the circumstances. Water: Where the water is tidal, the bed belongs to the Crown and the public have a right of navigation and a right to fish up to the point where the water ceases to be subject to the ebb and flow of tides. Where the water is non-tidal, then the bed belongs to the riparian owner. If the water forms the boundary between two plots of land, then subject to any contrary agreement or evidence, the riparian owners own up to the midway point in the river or stream along with fish . Where water, such as lakes and ponds, lies on the land, it is the property of the landowner, subject to the water Resources Act 1991. The subsurface minerals belong to the landowner but the petroleum and coal are vested in the crown and coal authority respectively through petroleum and coal Industry acts. The fee simple owner is entitled to all chattels found on the land except the treasure according to treasure Act 1996. Wild animals are not subject to ownership (The Case of Swans (1592) 7 Co Rep 156), but may be hunted by the fee simple owner on whose land they run. But not the protected of endangered animals. Fixtures and Chattels: There are two tests for determining whether an object is a fixture or a chattel. The first test relates to the degree of annexation. If the object is annexed to the land then it is, prima facie, a fixture. So, in Holland v Hodgson [1872] LR 7 CP 328, spinning looms bolted to the floor of a factory were attached other than by their own weight and were fixtures. In Hulme v Brigham [1943]KB 152, however, heavy printing presses which stood on the floor without any attachment other than the force of gravity, were the same object may constitute a fixture in one case, but a chattel in another. Depending on whether it was annexed to enjoy the object better or make land more useful through it (Wilkie et al 2006). FOURTH DIMENSION: the notion of estates present but ownership, which absents from British law. In British law ownership of land can not be direct or absolute. Only the crown has absolute ownership (Doctrine of estates). The doctrine of estates states that each owner (tenant does not hold the land but a slice of time over it. For that time period the land was called estate to the tenant and estates were graded temporally. Thus one had an intangible right or estate rather having a tangible thing such as owning the land itself. Thus the law of real property became distanced from physical reality to conceptual . Thus since the landowner could enjoy rights and powers over a land only for definite time period , a fourth dimension of time was incorporated in the three dimensional realty (Gray & Gray 2007). FIFTH DIMENSION OF LAND: The abstract right of estate could be made legal or equitable. Each estate could be subject of ownership both at law and in equity. Person owning estate can have right to property. Thus the estate ownership has duality. The legal rights of estates are addressed under common law court of the king. While equitable estates come under conscience based jurisdiction. The right is legal when it is created with some formal document or deed except when leasing is for less than three years.. The deed is necessary for registration under LRA 2002. The right will be equitable when a written contract or instrument under s2LP (MP) A 1989 or s53 LPA 1925 creates it. In some cases equity may arise from oral contract, promise or agreement if conditions for proprietaty estoppel have been fulfilled (Dixon 2005). Equity is flexible and sensitive remedy for instance based cases for which generalised remedy of common law offer no respite. The modern English law has fused both legal and equitable rights (Tinsley v Milligan (1994) per Lord Browne-Wilkinson). Still in cases of conflict the rule of equity prevails (Supreme court Act 1981 s 49(1) (Gray & Gray 2007; Mackenzie & Philips ) Present status of 'estate' in British law The Law of Property Act (LPA) 1925 abolished all forms of estate in land apart from two: the fee simple absolute in possession, and the term of years absolute. Because all other forms of legal ownership have been abolished, we generally just use the term freehold' for the fee simple absolute in possession, and leasehold' for the term of years absolute. The LPA was not the only major statute of 1925. The Land Registration Act (LRA) 2002 introduced a system of compulsory land registration. For the first time, most interests in land would have to be registered to be enforceable. This includes both legal and equitable interests. The LRA introduced by the back door the concept of ownership' of land. Although one cannot, in theory, own land outright, one can be registered as having absolute freehold title', which is as close to outright ownership as makes no practical difference. Now that all other forms of feudal obligation have been abolished, owners of freehold land now technically hold land of the Crown in free and common 'socage'. The idea that the Queen will demand socage is merely a notional one, of course. Still a few land holdings are as unregistered estates, which differ from registered estates in transfer of the land. The purchaser of an unregistered land need to see the 'root of title' (Dixon 2003; Cooke 2003). Besides the rights of trustee and beneficiary under TLATA 1996 differ depending on whether the land is co-owned or absolute powers over it are transferred to an equitable owner (Dixon 2005; Mackenzie & Phillips). More recently, the Commonhold and Leasehold Reform Act (2002), introduces an entirely new form of land ownership - the unithold'. Although commonhold land is not a new legal estate -- it is only a variation of the fee simple freehold that currently exists -- commonhold land must be registered specifically as commonhold. Within the commonhold each of the unitholders will be the absolute owner of the unithold. An association consisting of the unitholders will own the fee simple. Conclusion: Thus to the three physical dimensions of land a dimension of time is added to the holding of estate. Further whether such estate is under legal or equitable right as defined under present British law. Moreover, rights based on corporeal and incorporeal components, registered and unregistered land and land under trust have different rights, which are often interpreted, based on circumstances. Thus the legal definitions of land create obvious complexity due to its multidimensional nature. REFERENCES Cooke, E. & Britain, G. 2003. The New Law of Land Registration, Hart Publishing. Dixon, M. 2005. Modern Land Law, Routledge Cavendish. Gray, K. and Gray, S. 2007. Land Law ,LexisNexis Chappelle D. 2008.Land Law, Longman, MacKenzie, J.A. and Phillips, M. Textbook on Land Law,Edition OUP Wilkie, Luxton & Malcolm. 2006. Definition of land. Available at http://www.oup.com/uk/orc/bin/qanda/sample_chapters/wilkie_chap02.pdf Read More