Objectives notes: unit 1 - manual one nature & definition of property

OBJECTIVES NOTES: UNIT 1 - MANUAL ONE

NATURE & DEFINITION OF PROPERTY

1 What does property mean?

·  Associating property exclusively to physical objects & saying prop law relates only to such is over simplification since physical objects may come under other law areas (e. g. tort) & whilst prop law deals with ownership, it’s in fact wider concept (e. g. lessees not owners but have entitlements from such agreement - occupation gives lessee enforceable property right – proprietary interest - enforceable against 3rd parties) so property is wider than ownership;

·  Prop interests found even where no physical things exist (e. g. shares, debts, ‘things in action’), rights valid generally against the world so prop better described as A’s relationship to thing rather than thing itself, empowering & socially enabling certain control over socially valued resources – prop thus = abstract rights/ collection of rights measuring permitted controls over resources.

2 Significance of property rights

·  Prop rights extend beyond physical items, e. g. shares which share-holder can buy/ sell & assert rights to same which indicates such ownership to be prop in nature & rights of action (e. g. bank a/cs) where prop right not in money itself paid in but in obligation to pay balance on demand – i. e. in debt owed by bank to a/c holder, which can be transferred to another & a/c holder can prevent another claiming it so debt/ other rights of action are prop interests;

·  Vital concept of property is right to exclude others (e. g. land owners preventing others asserting rights over it) so preventing interference used to protect that considered important, frequently by statute (e. g. copyright & patents) but courts develop such exclusionary extensions (International News Service v Associated Press [1918] (USA));

·  Parties may simultaneously enjoy prop rights in same resource & such rights mutually compatible (e. g. landlord/ tenant) or inconsistent needing courts to determine priority when 2 or more people each claim prop rights in same land but where A’s property in land continued, this empowered him to control nature/ duration of B’s access so crucial to property that such power controls access, prioritises competing user modes & can exclude strangers;

·  Proprietary Interests (PI) status enables protection of rights but categories restricted by law covering houses etc, shares/ things in action, copyright & easements (e. g. rights of way) but not permissions to enter (e. g. licenses) or providing contract services.

3 Real & personal property

·  Legally, ‘real’ not = opposite of false/ fake but from Latin res (= thing) indicates quality/ relation to a thing (e. g. real security sought by creditor = ability to act against thing in the event of default whereas personal security indicates right against guarantor) so real = thing related & matches almost completely land & real prop or real estate or realty is viewed as land in the lay mind, whilst personal prop or personalty perceived as anything moveable (e. g. cars, TVs etc);

·  But law looks at interests in property & ancient law essentially remedial & didn’t guarantee specific recovery – condemnatio pecuniara (=condemnation in money) where successful claimants achieved financial reward rather than recovery of thing claimed – judgments were personal providing money rather than right to thing – right in personam but English law provided some exceptions – real action entitling specific recovery of thing (i. e. real prop/ realty) where essential issue was thing’s specific recoverability but this extended no further than matters relating to land – a right in rem.

4 Classification of leasehold property

·  Lease, irrespective of length, is personalty because no actions available for recovering ‘time slices’ until 16th century by when categories had been fully set & rather than formulating ‘real personalty’ to embrace specific lease recovery, leases deemed to fall within ‘chattels real’ meaning items of personalty specifically recoverable.

5 Use of real & personal property

·  If, in A’s will, all real prop left to B & all personal prop left to C & where estate = house/ land on long lease, car, motorbike, horse & freehold land, car, bike & horse are personal & house, being chattel real, is personalty passing to C as personal prop so only real prop passing to B is freehold land but heirlooms, which may frequently be moveable, are realty as are advowsons (right to call parson to church freehold).

6  Corporeal & incorporeal hereditaments

·  Blackstone says corporeal affect senses – that which can be seen or handled bodily – whilst incorporeal are non-sensation related, existing only in contemplation – that which are neither seen or handled but mentally created & whilst this view can be criticised in that, at law, prop relates to rights which, by essence, are incorporeal so, at law, all PIs are incorporeal, it can be understood by bearing in mind that some incorp rights relate to corp things (e. g. land) so where there is no corp thing but merely a right (e. g. an easement) these are incorp hereds; & Austin clarifies position - Corp hereds = thing itself that is subject to the right & Incorp hereds = not right’s subject but right itself;

·  Hered devolves from pre-1926 law where, on intestacy, realty passed to deceased who, frequently but not exclusively, was eldest son& such prop = heritable prop so hered = that, whether corp or incorp, which passed automatically to heir.

7 Definition of land - S.205(1)(ix) Law of Property Act 1925 (LPA 25)

·  Land includes land of any tenure, mines/ minerals (irrespective of whether not part of surface), buildings/ parts thereof (irrespective of how divided), other corp hereds, manor (including lordship & reputed manor/ lordship) , advowsons, rent, other incorp hereds, easements & rights/ privileges/ benefits in/ over/ from land & mines/ minerals include strata/ seams in/ under land & powers re working/ getting same, and hered = any real prop which would have devolved on an heir on intestacy before Act commenced.

8 Rights re water & airspace

·  Not possible to recover water per se but only in respect of land under it by referring in fact to land covered with water because water moves, wanders & is common to all at law so that one has only transient interest in it & where such water runs on to another’s land, no right to reclaim it but land covered by water permanent & immoveable, entitling PI in it so no PI in water but land owner entitled to make use of water whilst on his land;

·  Common law maxim ‘cujus est splum est usque ad coelum et ad inferos’ suggested landowner owned everything above it up to heavens & below it to centre of earth but no longer so, since, whilst grounds exist for trespass to airspace over land, unreasonable to hold balloonists liable to any landowner over whose property he passes (Kelsen v Imperial Tobacco co (of GB & Ireland) Ltd [1957]) & claim for indefinite upwards ownership not now correct since no authority to support this, irrespective of maxim’s longevity as absurd since means satellites trespassed all land over which they passed - rather, necessary to balance owner’s rights to enjoy use of land against airspace rights devolving on general public & just position = restrictions apply only to that necessary for ordinary land use/ enjoyment & above such height, owner has no more rights than any other (Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978]).

9 Definition of fixture

·  Chattels as moveable items = personalty but where attached to land MAY become fixtures & part of realty, as in homes where shelves, cupboards etc which pre-attached are chattels may become fixtures on attachment, being treated as part of land & no longer deemed to be chattel;

10 Court tests to determine fixtures

·  Vendors may wish certain attachments to remain chattels so can be lawfully removed whereas buyer may wish them to be classified fixtures included within purchase & whilst in practice contract of sale should make clear which items are included/ excluded, where this not adequately done, legal rules determine the position;

·  1st test was method/ degree of annexation: element of physical annexation to land & maxim quicquid plantatur solo, solo cedit (=that attached to soil becomes part of it) creates presumption that chattel has become fixture & although 2nd test may rebut this, where object is so affixed not removable without causing serious realty damage, hard for person claiming it to be chattel to so establish but, where easy to remove, more likely to be considered chattel & for presumption to be rebutted; &2nd test was annexation’s object/ purpose: where object rests purely by own weight, can be a fixture provided purpose of such placement to enhance realty; & lightly fixed item, capable of removal without causing damage, may be so regarded where placed to enhance room’s beauty as a whole but, even if affixed, object may remain chattel if purpose was to enhance object itself (Berkley v Poulett [1977]);

·  In earlier times, 1st test considered most important but unjust where the party had only a limited PI such as for their lifetime only as in Leigh v Taylor [1902] where life tenant affixed large valuable tapestries to walls &, from 1st test, such became part of realty meaning that if land passed to another on life tenant’s death so did tapestries notwithstanding will/ intestacy rules passing chattels to heir so 2nd test remedied injustice & its consideration of object/ purpose now more important than method/ degree as in 1st test.

·  Fixtures can be removed where vendor includes such right in sale contract or where ‘affixer’ is tenant, right to remove “tenant’s fixtures” such as trade, agricultural & ornamental fixtures;

·  Where structures can only be enjoyed in situ & made in such way that cannot be removed in whole or in sections elsewhere, then strongly inferred that purpose of placing structure was for it to form part of realty & ceases to be a chattel but wrong to describe it as fixture, since (i) in ordinary usage, people associate term with that fixed to structures rather than structures themselves; & (ii) tenant’s fixtures can be removed & would cause confusion if such were referred to as chattels, so better to say classifications threefold – object brought on to land may be chattel, fixture, or part & parcel of land itself, where objects within 2nd & 3rd category treated as part of land; and annexation tests useful regarding items affixed to land but not when considering houses themselves, rather matter of common sense & where building put together in such way that can’t be removed other than by destruction, then intention was that building part of realty & any lack of attachment to land did not prevent it being classified as realty (Elitestone Ltd v Morris [1997];

·  Items objectively intended to be permanent & give lasting enhancement to structure are fixtures but where attachment is temporary & is no more than that needed to use item, it remains chattel (TSB Bank Plc v Botham [1996]) so –

o  With ornamental items, where attachment only enables objects to be displayed and enjoyed as adornments, this indicates chattels (e. g. pictures) but not with such as ornamental wall tiles, so inherent ability to remove without causing fabric damage indicates a fixture but some objects capable of being both chattels & fixtures depending on circumstances – free-standing cooker connected only by electric cables is chattel but split level cooker with hob set into work surface & oven forming part of cabinet more likely fixture;

o  Bathroom fittings (e. g. taps, plugs, rails, soap dishes) demonstrate significant connection with structure to show intention was to permanently enhance house – purpose not to enjoy them for themselves but as accessories to use of room – to be permanent & to provide enduring enhancement;

o  Kitchen units, including sinks, where substantially affixed & where additionally between units & work surfaces there is tiling, show sufficient intention of permanent improvement & of degree of annexation to make them units but fitted carpets, curtains & blinds, although made for specific areas are insubstantially attached & no more so than necessary for their enjoyment as such remain chattels;

o  With ‘white goods’, annexation degree slight, no more than necessary for items to be used, they remained in place by own weight & not from connections to the structure, were frequently purchased individually, often have limited life time & will require replacement after several years so, since disconnection is comparatively easy without risk of fabric damage & purpose of them being ‘linked’ to the structure was merely to enable use for designed purposes, they remained chattels.