LEVEL 6 - UNIT 9 – LAND LAW SUGGESTED ANSWERS - JUNE 2016 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2016 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 (a) Section 205 of the Law of Property Act 1925 defines ‘land’ as including, inter alia, all corporeal and incorporeal hereditaments. This includes the land itself, buildings, and things forming a physical part of the land and buildings, as well as rights appurtenant to the estate. Assuming that the transfer is of only the estate (i.e. there is no provision in the contract for the transfer of fixtures and fittings), the purchaser will acquire, in terms of corporeal hereditaments, fixtures (but not fittings)and fructus naturales (not fructus industriales).Incorporeal hereditaments are those rights which benefit the estate, such as easements and restrictive covenants. The benefit of these rights will be deemed to form a part of any conveyance of the estate in the absence of words to the contrary (s62 Law of Property Act 1925). The courts have developed two tests to decide whether particular items are fixtures or fittings, although this will be a matter of fact in each case. The original test to distinguish fixtures (land) and fittings (chattels) is the ‘degree of annexation test’, although problems can arise with ‘temporary’ or ‘lean to’ buildings. Other things attached to land were seen as land so long as they were firmly attached. Thus if a one ton statue was bolted down, it was land, if not, a chattel (compare Holland v Hodgson (1872) and Berkeley v Poulett (1977)). The courts recognised the problem and addressed issues with consideration of whether things on the land formed a part of an ‘architectural scheme of décor'. Thus a tapestry nailed to the wall which was in keeping with a theme of decoration was land, whilst one simply nailed to the wall so it could be seen, was not (Compare Leigh v Taylor (1902) and Re Whaley (1908)). The narrow application of the idea of a ‘scheme of décor’ is of limited utility in the context of modern home ownership, however. The degree test is very binary in nature and can lead to irrational results. Page 1 of 14 The more modern and more subtle test is the ‘purpose of annexation’ test. This test asks why the object has been attached: for its own purpose, or for the enhancement of the land. The case of TSB Bank plc v Botham (1996) casts some light on its application to things one expects to find in a modern home. Botham invites the court to distinguish fixtures and fittings on the basis of permanence & lasting improvement and relevance or utility and ease of removal. In that case, kitchen and bathroom units were considered fixtures, whereas white-goods and gas fires, given their limited annexation and short working lives, were considered fittings. Similarly, unless recessed (that is ‘built in’) light fittings were to be considered fittings. The case of Elitestone v Morris (1997) confirms that a common sense approach should be taken to the application of the degree and purpose tests. In that case, a free-standing wooden bungalow was held to be a fixture, not least because it would be destroyed if any attempt was made to remove it. It should be noted that the court took an objective approach in this case – the intention of the party annexing the item is of limited relevance. While a useful guideline, Elitestone and the other cases in the area are difficult to apply as general rules as they are extremely fact-sensitive. Following the decision in Duppa v Mayo (1669), it is accepted that fructus naturales (naturally growing plants) form land, but that fructus industriales (cultivated plants) do not. The distinction is drawn by human cultivation; thus, for example, ‘wild’ mushrooms deliberately grown are not land. The sometimes rather inappropriate degree of annexation test has given way in part to the purpose test, which it is clear is governed by a ‘common sense’ approach leading to fewer obviously perverse results. In cases such as Botham, the courts have also suggested that items installed by a builder are likely to be fixtures, while self-installed items are more likely to be fittings. It should be noted that in modern conveyancing, the use of ‘tick-lists’ has reduced the amount of legal disputes in this area. Therefore the extent to which a purchaser is entitled to physical objects relates directly to the purpose of the vendor in attaching the object. Decisions in the related line of cases regarding objects found in or on land also support this view. In Parker v British Airways Board (1982) the occupier was held to have considerable rights over objects embedded in or attached to land (as fixtures traditionally are also) but needed to demonstrate an element of control (and thus a mental element analogous to a purpose) to claim objects found unattached to the land. 1(b) The theory that the owner of land owns the estate to the depths of the earth (ad inferos) and to the heavens above (ad coelum) was long an unquestioned maxim, but in more recent years has proved problematic, particularly since the advent of manned flight. The original common law position was that the owner of land owned everything beneath and above that land. Examples of this approach are that the owner, not the finder, would receive any items found in the land (Elwes v Brigg Gas Company (1886); that minerals found in the ground were traditionally the property of the freehold owner (apart from gold and silver); and that overhead signs would constitute trespass (Gifford v Dent (1926)). However, in Bernstein v Skyviews (1978) the court held that an estate owner had no greater right than any member of the public to altitudes above that ‘necessary for the ordinary and reasonable enjoyment of the land.’ Furthermore, s76 Civil Aviation Act 1982 provides that no action in trespass lies against Page 2 of 14 aircraft flying over the estate at a reasonable height. This will, of course, depend on the use of the land and the height of any buildings on it. The law recognised that mines and minerals, certain water-courses and ‘treasure trove’ (now ‘treasure’ governed by the Treasure Act 1996) were not a part of the estate. Statutory powers for utility and transport organisations to lay pipes, wires and tunnels further mitigated the notion that the estate ran to the depths of the earth. However, it should be noted that in Bocardo v Star Energy (2010) the Supreme Court held that drilling a well to extract oil over a thousand feet below the surface would still constitute a trespass to land unless the landowner had given consent. However, it should be noted that the Infrastructure Act 2015 ss.43-48 allows energy companies to exploit resources underneath an owner’s land without notice, as long as these are at least 300 metres below the surface. However, while the Act allows such companies to leave the land in a different state, there are pre-conditions to exercise the right and there is scope for the Secretary of State to introduce regulations requiring notice to the land-owner. Therefore the maxim is still technically true, in that the estate owner owns it to the depths and to the heavens. But the reality is such that his or her ownership rights are illusory beyond a reasonable height or depth given the number of circumstances which can arise in which those rights are unenforceable. Question 2 An easement is a right to do something on someone else's land falling short of a right to possession. In order to be an easement a right must fall within the criteria laid down in Re Ellenborough Park (1955). The right must: • relate to a dominant and servient tenement; • which are owned or occupied by different persons; • accommodate the dominant tenement; • and ‘be capable of forming the subject matter of a grant’. An easement will accommodate the dominant tenement where there is sufficient proximity between dominant and servient tenements and where the rights benefit the estate (and any owner of it) rather than being a personal right. Thus in Hill v Tupper (1863), where the claimed right benefited the dominant tenement owner’s business rather than the land, the right was incapable of being an easement. The final point takes in both the capacity of the grantor and grantee and that the right claimed falls within the range of rights recognised by the courts as being capable of amounting to easements. Such rights must not be vague or indefinite (Webb v Bird (1863)). An easement can be created by grant, where a landowner grants an easement over his own land to another, or by reservation, where a landowner retains an easement over land that he sells to another. In the absence of an express grant of an easement the courts may imply a grant of easement under one or more of four heads.