Physical Limits of Real Property

Physical limits of real property Article 43 of Constitution – most anti-positivist provisions- private property- state acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.\ 43.1.2- State guarantees to pass no law attempting to abolish this right… Professor JWC Wylie- calling for vigorous reform since 1973 and in 2009, the Land and Conveyancing Reform Act was passed. Limits - soil, buildings and fixtures. Land, its definition, and the question; ‘how deep do our property rights extend?’ have all attracted debates and theories from many schools of thought. A building becomes part of the land- superficies solo cedit- subject to the possible operation of proprietary estoppel, general rule is that anything which is attached to real property becomes part of the realty and belongs to the owner of the real property in question. Like many maxims in practice, the ad coelum doctrine is only an approximation of the truth Real property- ‘real property, real estate, realty, or immovable property is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or afÏxed to the land, including crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads, among other things.’ To determine whether something is a fixture or not, we must look at the test: Fixture v chattel Fixtures are assets that are installed or fixed in or to a property and therefore become part of that property in law. Fixtures are land and form part of it and in the event of a sale, cannot be removed from the property without any conditions stating it can in the contract. The second type of property are chattels which are not land but are simply personal property that may be taken away if the seller wishes to do so. A chattel is usually tangible and moveable, although they are capable of becoming fixtures if they are fixed in or onto a building. Degree of annexation and purpose of annexation Degree of annexationthe degree of annexation test was first questioned in Holland v Hodgson (FN) in which fixtures were defined as objects that are attached other than resting on their own weight, if the object is annexed to the land it is, prima facie, a fixture. Degree of annexation on its own is not decisive: Elitestone v Morris- bungalow resting by own weight on concrete pillars was held to be a fixture (not a chattel) – possible third arm to test- ‘part and parcel’ bungalow fell into the third category of the classification as “part and parcel” (FN) of the land as it appeared that it could not be removed from the land without destruction and the fact that it was not physically fixed to the land was insignificant, but it is contended that the purpose of annexation test addresses this. Leigh v Taylor- securely attached tapestry held not to be a fixture… The tapestries in Leigh v Taylor (FN) were considered to be chattels under the degree of annexation test as they were easily moveable and further the purpose of annexation test concluded this as there was no specific reason for them to be there, as the only reason they were there was for personal enjoyment. Contrast with: D'Eyncourt v Gregory in which the statues were held to be chattels due to their degree of annexation, although this was rebutted by the purpose of annexation test as the statues were held to be part of the architectural design of the land and therefore were held to be fixtures and weren't allowed to be removed. The degree of annexation test is fairly inconclusive and simply looks at how securely an item is attached to the land or building, traditionally if the item is fixed securely to the land, such as a bath, then there is a presumption that it is a fixture. Purpose of annexation can aid this… make it more conclusive… if an object passes the first test regarding the degree of annexation; the first test can be rebutted by the purpose of annexation test. This test looks at the specific purpose of annexation of the item, i.e. why the object was placed there. If an item is not securely attached to the land and is easily moveable but it forms part of the architectural design of the property there is a presumption that it will be regarded as a fixture. Ancient maximcuius est solum eius est usque ad coelum et usque ad inferos: ‘the owner of the soil owns up to the heavens and down to hell’ - ad coelum doctrine This doctrine states that property holders have rights not only to the plot of land itself, but also to the air above and (in the broader formulation) the ground below. The principle is often referred to in its abbreviated form as the ad coelum doctrine. Land, to some extent, can be seen as a 3D corridor of space. How seriously must we take this maxim? property title includes to the space immediately above and below the ground – preventing overhanging parts of neighbouring buildings – but do not have rights to control flights far above the ground or in space. John G Spranklings “owning the centre of the earth" here we see how the author recognises that because there has been such an advancement with our scientific technology as well as environmental changes such as global warming there is a need for us to recognise the need for a new “model" of subsurface ownership UP TO THE HEAVENS Kelsen v Imperial Tobacco (1957) tort of trespass- does not require any damage to be shown by the plaintiff- sign attached to one building projected into airspace above neighbouring building. the defendant erected a sign that protruded into the claimant’s airspace by four inches. (the air space above the shop was part of the premises demised to the plaintiff on a true construction of the lease of December 1948 there was nothing to displace the prima facie conclusion that the demise of the premises included the air space above the shop) Held: An injunction was granted to prevent the trespass of the airspace. Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) The defendant’s crane over sailed on to the claimant’s airspace above their land on a regular basis during the construction of a housing development. No damage was caused. The claimant was entitled to an injunction to prevent the trespass since trespass is actionable per se. Baron Bernstein v Skyviews LtdThe defendant company took aerial photographs of properties and offered to sell them to the owners of the properties in the photos. The claimant, Bernstein, owned Coppings Farm in Kent and complained that the photographs were taken without his consent, was an invasion of his privacy and had been obtained by trespassing onto his airspace. He demanded the negatives should be handed over to him or destroyed. Held: There was no trespass. A landowner only has rights in the airspace to such a height as is necessary for ordinary use and enjoyment of the land. Even if there was an action for trespass, this would not provide a remedy in relation to the photos as there was no law against taking a photograph. The taking of a photograph could not turn an act which was not trespass into trespass. GrifÏths J- if ad coelum were applied literally it would lead to the absurdity of trespass being committed every time a satellite passed over a suburban garden. The best way to strike that balance in our present society was to restrict the rights of an owner in the airspace above his land to such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it, and to declare that above that height he had no greater rights in the airspace than any other member of the public. (s55 Air Navigation and Transport Act 1936- No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of aircraft over any property at a height above the ground, which, having regard to wind, weather and all the circumstances of the case is reasonable) A distinction based on whether the incursion comes from an object attached to neighbouring land (as in Kelsen v Imperial Tobacco and Anchor Brewhouse Developments) or is a free object passing above? – Baron Bernstein v skyviews Ltd In Anchor Brewhouse Developments (crane swinging) counsel for defendant had referred to Baron Bernstein (aerial photography) Scott J looked at this distinction: “in my opinion, it would be an incorrect use of authority to extract GrifÏth J’s approach (baron berstein- aerial photos) to the difÏcult question of overflying aircraft and to seek to apply that approach to the invasion of air space in general. The difÏculties posed by overflying aircraft or balloons, bullets or missiles seem to me to be wholly separate from the problem which arises where there is invasion of air soace by a structure placed or standing upon the land of a neighbour […] if somebody erects on his own land a structure, part of which invades the airspace above the land of another, the invasion is trespass. DOWN TO HELL The landowner owns the subterranean space below the surface of their land. He can dig down into it to form a cellar or underground room. As S.205(1)(ix) [23] states, Mines and minerals form part of the land, however certain minerals do not belong to the landowner but in Fact the state. This is offered constitutional protection under Art 10 of Bunreacht na hÉireann,  Mineral Development Act 1979 Edwards v Lees Administrators (1936) The entrance of a cave was located on Edwards, the Petitioner’s (Petitioner) property. The Petitioner operated a public exhibition of the cave. A dispute arose because the Petitioner’s neighbour, Lee, felt the cave might extend under his property. Synopsis of Rule of Law: Despite the historical principle that property ownership includes ownership of both the air above and the soil below real estate, there are certain cases, such as this, where a court of equity is empowered to make rulings which prevent the property from being used to the detriment of or interference with contiguous property and owners. Facts. The entrance to the Great Onyx Cave was located on the Petitioner’s property. The Petitioner opened the cave to exploitation and public show. Lee owned the neighboring property. In an underlying case, Lee sued the Petitioner to compel a survey of the cave to determine whether any portion of the cave fell within the boundaries of Lee’s property. In that case, the Respondent here, Chancellor Sims (Respondent) ordered a survey. The Petitioner appealed that ruling and the Court of Appeals found the appeal was filed prematurely. The Petitioner, being aggrieved, filed the instant case in the form of a Petition for Writ of Prohibition against Chancellor Sims, who was sitÝng as the court of equity. Issue. Does the Court have the right to order the invasion of Petitioner’s land, for the purpose of conducting a survey, to determine conclusively the rights between two landowners in a dispute before the Court? Basically, the use of the cave under Lee’s land was considered to be trespass… Trinidad Asphalt Co v Ambard- layer of asphalt pitch beneath the surface of the land.. When the defendants dug away their land, the semi-solid pitch or asphalt present on the plaintiff's land that oozed over into the defendant's border when exposed to the elements, was subsequently appropriated by defendants. The defendant's excavation also damaged buildings on the plaintiff's land. This was caused by the subsidence that had resulted from the removal of the pitch. The Privy Council were prepared to hold that there had been an actionable wrong and awarded damages in respect of not only damage to buildings but also the value of the pitch itself (which greatly exceeded the value of the buildings) on the basis that the pitch, as part of the soil (and hence owned in situ) carried with it a right of support which had now been eroded. Star Energy Weald Basin Ltd v Bocardo SA : held a landowner also owned the strata and minerals, unless they conveyed it, in common law or statute, to someone else, so an oil company making wells 800 to 2900 feet below the surface was trespass, and had to pay compulsory purchase compensation under the Mines (Working Facilities and Support) Act 1966 s 8(2). Bocardo SA did own the ground, and was entitled to claim for trespass by the wells. Star Energy Ltd had no defence in trespass under PPA 1934 s 10(3) (re-enacted in PA 1998 s 9(2). It was irrelevant if a landowner did not make use of the ground. But, for assessing damages, the right measure was the amount of compensation payable under the Mines (Working Facilities and Support) Act 1966. This operated to prevent the powerful bargaining position of a landowner to control access to a potentially valuable oilfield. Lord Hope, giving the first and dissenting judgment, said a landowner did own the ground beneath, including minerals, unless there was a conveyance or statute, as in Mitchell [1914] 1 Ch 438. There had to be a logical limit, where pressure and temperature to the Earth’s core made ownership so absurd as to be not worth arguing about, but the wells were not that deep. Special rule concerning underground water which is not flowing in any defined channel… Division of land in the vertical plane  imagine dividing the land up into slices that are on top of each other rather than side by side (eg two neighbouring farms). Example- where one person owns the ground floor of a building, and someone else owns the first floor. Quite common e.g. apartments. Apartments usually not owned as freeholds (no landlord)- tend to be held on leases. ‘flying freeholds’ a flying freehold is a tiny part of a freehold property that either reaches into, or is built on or over, a neighbouring house. in a case like this you will not be the owner of the 'land'; you'll simply be the owner of the piece of property that is over the land a freehold which overhangs or underlies another freehold. Common cases include a room situated above a shared passageway in a semi-detached house, or a balcony which extends over a neighbouring property. Discussion of concept in A O’Gorman & Co Ltd v JES Holdings Ltd GRIGSBY V MELVILLE- cellar beneath drawing room floor… he claimant owned a semi-detached house. The house had originally been part of a larger detached house with single ownership which had then been divided in two. The claimant purchased half the property and the defendant purchased the other half. The house had a cellar. The entrance to the cellar was on the defendant’s property and the cellar ran under the claimant’s property. The defendant had been using the cellar. The claimant sought an injunction to prevent him from using it. Held: The cellar belonged to the claimant- cellar ran under his property, even if entrance wasn’t on his property it was his… Lejonvarn v Cromwell Mansions Ltd- tenants failed in the argument that they, rather than the landlord were entitled to the land under the ground floor flat they had leased. High Court finds that lessee is not entitled to excavate under his flat as the sub-soil is not included within his demise. The presumption that ownership of land normally carries with it the ownership of the soil beneath could not apply given the terms of the lease. Lowe (Inspector of Taxes) v JW Ashmore Ltd – farmer attempted to avoid tax by arguing that he had sold the top 2 inches of his land (turf) still had to pay tax on it- In Lowe v J W Ashmore Ltd 46 TC 597, the sale of turf by a farming company was held to be taxable as income. STATUTORY DEFINITION OF LAND Land and Conveyancing Law Reform Act 2009, s.3 “land” includes (a) (b) (c) (d) (e) (f) Any estate or interest in or over land, whether corporeal or incorporeal Mines, minerals and other substances in the substratum below the surface, whether or not owned in the horizontal, vertical or other layers apart from the surface of the land Land covered by water Buildings or structures of any kind on land and any part of them, whether the division is made horizontally, vertically or in any other way The airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace, whether the division is made horizontally, vertically, or in any other way, Any part of land The creation of new land: accretion- land created by the gradual and imperceptible encroachment of the land upon the sea (deposition of sand, silt etc). Such newly created land belongs to the nearest land-owner. Foreshore- land between high-water mark and low-water mark and generally belongs to the State. Creation of new land will cause the foreshore to recede towards the sea and the land uncovered will belong to the neighbouring landowner. Same principles apply to the gradual loss of land through erosion- loss will be borne by continuous landowner Where land is created suddenly by natural causes or through deliberate reclamation, the land will belong to the person who owned the land previously covered in water. In the case of land created at the sea’s edge, new owner will be the State unless some contrary arrangement has been made by statute or otherwise. FINDING Who has the best claim to an item that’s found on someone’s land? Person who has lost the property will have best right to it. But if that person doesn’t make a claim? Eg if it was lost/hidden a v long time ago Where ‘true owner’ is not around to make a claim, the competition is between the person who found the item and the person who owns the land on which is was found. Distinction (i) cases where it was found ON the land (ii) cases where it was found IN the land, and finder had to uncover it. Neither has the very best claim, but law is trying to decide who has the better claim. (a) Objects found on land When things are found above the surface of the land it is less likely that the owner of the land will be able to show both possession and an intention to possess such as to give him or her better title than the finder of the objects. General rule- finder has second best title to the item (true owner has first). Armory v Delamirie- chimney sweep found jewel during course of his work. Went to sell it to jeweller, who took it but refused to pay for it as some third party was ‘evidently the true owner’ and not the boy. Court Held: the boy had better title and the only person who could defeat him was the actual owner of the jewel. Case confirmed that the finder did not acquire an absolute title to the item but merely a stronger title than anyone other than the true owner Parker v British Airways Board- did the occupier manifest an intention to exercise control? - The claim is finders (Parker), not recovery (BA). BA was not excluding everyone from the lounge, only some people. For recovery to exist, there would need more control. Plaintiff found gold bracelet lying on floor in airport lounge. Handed to rep with his name and address- if not claimed, should return to him. True owner didn’t come forward, British Airways sold it for £800. CtA held that plaintiff was entitled to the recovery of the monies. Manifest intent to exercise control: Approved in Ireland, SCt, Webb v Ireland The Webbs got permission ‘to look’ at Derrynaflan Church. He used a metal detector and began to dig and found the Derrynaflan Hoard. Webb passed it on to the National Museum with the assurance they would receive honourable treatment. It was worth £5.5 million. The State sought to buy up the rights of the landowners and gave them £25,000 each. The State then offered £10,000 each to the Webbs. HC - Blayney J - the Webbs had a better claim and the Treasure Trove didn’t come over onto the Irish Free State. SC - reversed the HC saying treasure trove didn’t exist because of the sovereignty of the Irish people but used article 5 to justify the hoard belonging to the state. They brought in the concept of ‘legitimate expectation’. A test of ‘nationality’ of the objects were introduced and heavily criticised by J.M. Kelly. The case also stated regardless of the object been gold or silver it is the importance of them to Irish history is the test.  right to ownership of treasure trove vested in the state as an inherent attribute of its sovereignty, and the sovereign rights of the people, as protected by Art 10 of the Constitution  finder had no claim to ownership, but might have a claim to a reward on the doctrine of legitimate expectation (A legitimate expectation is said to arise “as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority." Therefore it extends to a benefit that an individual has received and can legitimately expect to continue or a benefit that he expects to receive.) assurances that they would be ‘treated honourably’ created legitimate expectation, caused the assurance to become binding. Awarded £25,000 each. Examples of ‘Parker’ in action Chairman, National Crime Authority v Flack- Australian case- briefcase containing cash found by police in high cupboard in Flack’s house; succeeded in recovering the money after the conclusion of the investigation- as occupier of the house she was assumed to have an intention to possess all items in the house, even those she knew nothing about. It is not necessary for the purposes of the tort that the plaintiff have legal title to the chattel; rather, the tort depends upon proof of a 'possessory title'. In order to maintain a title to sue in conversion, possessory title is as good as legal title, as against all the world except the true owner of the chattel. Thus, Mrs Flack's cause of action did not depend upon proof of her ownership of the briefcase and money-indeed, she admitted that she did not own them and had not known of their existence-it depended upon her right to their possession.1° Tamworth Industries Ltd v Attorney General- New Zealand case. Money found by police hidden under rotten floorboards in a derelict house on a site to which wide range of people had access; occupier, who had been acquitted on drugs charges, subsequently failed to recover the property. Did not manifest intent to exercise control- wide range of people had access etc… High Court was not satisfied that the possessor of land had sufÏciently manifested the intention required to prove an earlier possession than the police.[114] It is clear that relevant factors in the decision included the ease of access which members of the public had to the premises, and the general disrepair of the building,[115] but again there is no formulation of any general test for manifest intention. Thus, although Parker might now be taken as the leading case where goods are found on the land of another, little has been done to settle the evidential difÏculty first articulated by Goodhart some 80 years ago. OBJECTS FOUND IN LAND Occupier will always have a better claim when the object is IN land (Approval in Webb) General rule is that objects found below the surface is that they belong to the owner of the freehold, in the absence of the original owner, even if the owner of the freehold is not aware that they are there. Elwes v Brigg (English case) – land leased to gas company- excavating on the land. While doing so they discovered a prehistoric boat 6 feet below the surface. Held to be the property of the lessor, although the lessor was ignorant of the existence of the boat @ time lease was granted. Justification for rule in Waverley Borough Council v Fletcher- Ian Fletcher, a metal detector enthusiast, went to Farnham Park owned by Waverly Borough Council to use his metal detector to see if he could find any items of interest. The park was open to the public for leisure and recreational use and Mr Fletcher was a lawful visitor to the park. He found a medieval gold brooch which was nine inches below the surface. He reported his findings and a coroners inquiry was set up to determine if the item was treasure trove. The item was found not to be treasure trove and returned to Mr Fletcher. The Council then brought an action against Mr Fletcher claiming ownership of the brooch. Held: The brooch belonged to the Council as owners of the land in which it was found. Common law principle that the landowner owns soil beneath the surface was indirectly recognised in Ireland in relation to the construction of the Dublin Port Tunnel. Finding and the State Webb- Article 5, (Ireland is a sovereign, independent, democratic State) Article 10 of the Constitution 1 All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body. Question of reward- legitimate expectation on the facts- state made assurances… As prompted by the SCt in Webb, the oireachtas introduced legislation to expand the protection of items of national importance via the national monuments (amendment) act 1994. National Monuments (Amendments) Act, 1994 S2(1) vested in the state- ownership of any archaeological object found in the State after the coming into operation of this section where such object has no known owner at the time when it was found S14- archaeological object- any chattel whether in a manufactured or partly manufactured or unmanufactured state which by reason of the archaeological interest attaching thereto or of its association with any Irish historical event or person has a value substantially greater than its intrinsic (including artistic) value. And the said expression includes ancient human, animal, or plant remains S10- discretion in the director of the national museum- to grant a reward to the finder or owner or occupier of land- taking into account the intrinsic value and general historical and archaeological importance of the object found; the circs of the finding of the object; and the amount of the rewards paid in the state in respect of the finding of other comparable archaeological objects. Finding by Trespasser- Parker- trespasser acquires very limited rights. Majority approval in Webb. Parker itself, Donaldson LJ thought that where the finder was dishonest or a trespasser, then a departure from the ordinary possessory rules was warranted. In such circumstances, a special rule of the common law gave a better title to the person vis-à-vis if he was a trespasser: ‘The fundamental basis of this is clearly public policy. Wrongdoers should not benefit from their wrongdoing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce [a] free-for-all situatio Parker itself, Donaldson LJ thought that where the finder was dishonest or a trespasser, then a departure from the ordinary possessory rules was warranted. In such circumstances, a special rule of the common law gave a better title to the person vis-à-vis if he was a trespasser: ‘The fundamental basis of this is clearly public policy. Wrongdoers should not benefit from their wrongdoing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce [a] free-for-all situatio Parker itself, Donaldson LJ thought that where the finder was dishonest or a trespasser, then a departure from the ordinary possessory rules was warranted. In such circumstances, a special rule of the common law gave a better title to the person vis-à-vis if he was a trespasser: ‘The fundamental basis of this is clearly public policy. Wrongdoers should not benefit from their wrongdoing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce [a] free-for-all situatio Hickey- Stealing abandoned goods… fundamental principle- public policy. Wrongdoers (trespassers) should not benefit from their wrongdoing. Irrespective of whether or not the taker has permission to be on the land, the landowner will have a better title. 66 Any talk of trespass here is a red herring. -object found in land- occupier/landowner has better title. Any talk of trespass here is a red herring. Look @ parker- if he didn’t have permission to be in BA lounge, would be benefitÝng from his wrongdoing… In opinion of Hickey- “the better view in our law of property must surely be that trespass makes no difference to the nature of substance of a finder’s rights – only possible to defeat the claims- proof of a better possessory title. FINDER: 1. Finder acquires no rights to a found item unless: i. property has been abandoned or lost ii. he takes it into his care and control. 2. Qualifying Factors: --Limited rights: If acquired with dishonest intent or while trespassing --Transfer rights: If acquired in the course of employment without other agreement with owner --Not an absolute/property right: It is held against all but owner or one with a prior right. 3. Obligation: "take such measures as in all the circumstances are reasonable to acquaint the true owner of the finding... and to care for it meanwhile." OCCUPIER 1. Has a superior right when: i. It is embedded or attached to land ii. Embedded in building (or boat, car, etc.) iii. Manifested intent to exercise control over things upon her land 2. Obligation: Same as finder.)