TOPIC ONE
INTRODUCTION
Proprietary rights = are rights governing people’s ability to use and enjoy the land
-land you physically possess
-land physically possessed by others
-relate to what u can / cannot do over the land
-be numerous over a piece of land
-not only enforceable against the person who originally granted it to u/ but also to any other person
who may come to the land over which that right is exercised
-unique commodity
- from lecture c = enforceable – binding a new owner
= transferrable – able to be transferred to another person
IMPORTANT TO BE ABLE TO IDENTIFY
1) the relevant land
2) the rights of owner of the land
3) the rights in the land owned by another person
ESTATE = gives you time
INTERST = gives you rights
Why is it so important?
- No piece of the land is the same.
- Expensive
- Marketability and value
*Important to strike a balance- many proprietary rights binding a piece of value, may rend it an
unattractive investment
** some rights although exercised in relation to land are not given proprietary status – example –
licenses, which they remain personal rights * however exceptions.
OWNERSHIP OF LAND
- The most you can have over a piece of land is a proprietary rights to possess, use, enjoy and
deal with the land to the exclusion of anyone else =>ESTATE
, - Two types of estate = 1) freehold = 2) leasehold
1) FREEHOLD
- holding a freehold is basically being owner
-their rights and relationship to the land = undistinguishable from that of the absolute owner
-equivalent (tantamount) to absolute ownership – depends on how land is defined
• the physical surface area of the land;
• the lower airspace above the physical surface area necessary for his ordinary use and enjoyment
of that land.
***Any invasion of this lower airspace is prima facie actionable as a trespass: Anchor Brewhouse
Developments v Berkley House (Docklands Developments) Ltd (1987), with a remedy of an
injunction where damages would not be adequate. This is qualified by statute, for example the
Civil Aviation Act 1982, which allows for aircraft to pass over land at a reasonable height, without
amounting to an actionable trespass.
***A landowner has no claim to trespass where there is interference with his upper airspace, ie that
airspace not necessary for his ordinary use and enjoyment of the land: Bernstein of Leigh (Baron) v
Skyviews & General Ltd [1978]. To allow otherwise (p. 6) would create absurdities and stifle the
ability of the general public to take advantage of developments in science regarding airspace (eg
satellites);
• buildings or parts of buildings found on the land, whether the division is vertical or horizontal;
What is the depth they can go??
/Mitchell v Mosley [1914] – the owner of the surface land is the owner of the strata beneath
Affirmed --Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2011] 1 AC 380
• wild plants growing on the land. Commercially grown plants are not considered part of the land
and belong to those who planted them;
• dead wild animals killed on the land, irrespective of who killed them. Living wild animals do not
belong to anyone, although a landowner has a right to kill them whilst they are on his land, subject
to any statutory protection they might enjoy;
• the soil over which water flows. Where two plots of land are separated by a river, each plot owner
owns the soil up to the middle of the river. As regards any fish that may be found in these waters,
where the water is non-tidal the owner of the land has exclusive fishing rights, subject to him having
INTRODUCTION
Proprietary rights = are rights governing people’s ability to use and enjoy the land
-land you physically possess
-land physically possessed by others
-relate to what u can / cannot do over the land
-be numerous over a piece of land
-not only enforceable against the person who originally granted it to u/ but also to any other person
who may come to the land over which that right is exercised
-unique commodity
- from lecture c = enforceable – binding a new owner
= transferrable – able to be transferred to another person
IMPORTANT TO BE ABLE TO IDENTIFY
1) the relevant land
2) the rights of owner of the land
3) the rights in the land owned by another person
ESTATE = gives you time
INTERST = gives you rights
Why is it so important?
- No piece of the land is the same.
- Expensive
- Marketability and value
*Important to strike a balance- many proprietary rights binding a piece of value, may rend it an
unattractive investment
** some rights although exercised in relation to land are not given proprietary status – example –
licenses, which they remain personal rights * however exceptions.
OWNERSHIP OF LAND
- The most you can have over a piece of land is a proprietary rights to possess, use, enjoy and
deal with the land to the exclusion of anyone else =>ESTATE
, - Two types of estate = 1) freehold = 2) leasehold
1) FREEHOLD
- holding a freehold is basically being owner
-their rights and relationship to the land = undistinguishable from that of the absolute owner
-equivalent (tantamount) to absolute ownership – depends on how land is defined
• the physical surface area of the land;
• the lower airspace above the physical surface area necessary for his ordinary use and enjoyment
of that land.
***Any invasion of this lower airspace is prima facie actionable as a trespass: Anchor Brewhouse
Developments v Berkley House (Docklands Developments) Ltd (1987), with a remedy of an
injunction where damages would not be adequate. This is qualified by statute, for example the
Civil Aviation Act 1982, which allows for aircraft to pass over land at a reasonable height, without
amounting to an actionable trespass.
***A landowner has no claim to trespass where there is interference with his upper airspace, ie that
airspace not necessary for his ordinary use and enjoyment of the land: Bernstein of Leigh (Baron) v
Skyviews & General Ltd [1978]. To allow otherwise (p. 6) would create absurdities and stifle the
ability of the general public to take advantage of developments in science regarding airspace (eg
satellites);
• buildings or parts of buildings found on the land, whether the division is vertical or horizontal;
What is the depth they can go??
/Mitchell v Mosley [1914] – the owner of the surface land is the owner of the strata beneath
Affirmed --Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2011] 1 AC 380
• wild plants growing on the land. Commercially grown plants are not considered part of the land
and belong to those who planted them;
• dead wild animals killed on the land, irrespective of who killed them. Living wild animals do not
belong to anyone, although a landowner has a right to kill them whilst they are on his land, subject
to any statutory protection they might enjoy;
• the soil over which water flows. Where two plots of land are separated by a river, each plot owner
owns the soil up to the middle of the river. As regards any fish that may be found in these waters,
where the water is non-tidal the owner of the land has exclusive fishing rights, subject to him having
