Land: Backbones Notes
Nature of Land
Land: surface, buildings, other corporeal hereditaments attached to the land
Airspace: lower airspace is that necessary for the ordinary use and enjoyment of the
land
Fixtures – attached to the land and becomes part of the land
o Degree of annexation test – the more firmly attached, the more likely to be a
fixture
o Purpose of annexation test – was the annexation for the enhanced enjoyment
of the building? Suggests a chattel
If not a fixture, then a chattel so can be removed
Garden ornaments: could be regarded as a fixture if they form
part of the architectural design
Rights in the land
o Proprietary rights – can be enforced by action in rem meaning possession
can be recovered
o Personal rights – Only bind the original parties to the right, cannot be
enforced against a third party
Estates in the land
o Freehold Estate: Fee Simple Absolute in Possession
o Leasehold Estate: Estate granted in term of years absolute
Sub-lease: lease granted by leaseholder for a lesser duration of their
own lease
Legal interests in the land
o Capable of being legal
Mortgages
Easements
Leases for 5 years or more
o Equitable-only rights
Restrictive covenant
Option to buy
Estate Contract
Easements for uncertain duration
Beneficial interest
o Statutory right
Allows a spouse or civil partner to occupy the family home, regardless
of whether they are the legal owner
Co-ownership and Trusts
Legal title – both owners are trustees equally
Equitable title – both hold the property for themselves in equity
o Joint tenancy in equity – held in equal shares, right of suvivorship
, o Tenancy in common in equity – held as a distinct share, passes outside of
survivorship
Severance of joint tenancy will result in a tenancy in common
Notice in writing – unequivocal intention served to them or last
known place of abode/business by postal or hand
Unilateral act by one joint tenant
o Total alienation – sale or gift of interest
o Patial alienation – disposes of interest by mortgage
o Involuntary – bankruptcy
Mutual agreement
Mutual conduct
Resolution of disputes under TLATA 1996: Gives court jurisdiction to hear
applications – main consideration is whether the purpose was continued.
o Factors considered
Intentions of the persons
Purposes for which the property subject to trust is held
Welfare or a minor
Interests of a secured creditor
Four unities for a joint tenancy:
o Unity of possession – no co-owner can be excluded from any part of the land
o Unity of interest – same nature and duration
o Unity of title – same document
o Unity of time – interest vests at the same time
Easements
A right in the land
Legal easements
o Must be for a freehold or leasehold term
o Created by deed
o Or by prescription at common law for 20 years
Test for express easements – Re Ellenborough Park
Dominant and servient tenement
Right accommodates the dominant tenement
Diversity of ownership
Right lies in grant
Cannot involve additional expenditure or permission
Implied easements
o Necessity – narrow scope, must be absolute necessity
o Common intention – narrow scope, lease for particular purpose, easement
will be implied into.
o Wheeldon v Burrows – operates to imply easement into a transfer deed
Quasi-easement
Nature of Land
Land: surface, buildings, other corporeal hereditaments attached to the land
Airspace: lower airspace is that necessary for the ordinary use and enjoyment of the
land
Fixtures – attached to the land and becomes part of the land
o Degree of annexation test – the more firmly attached, the more likely to be a
fixture
o Purpose of annexation test – was the annexation for the enhanced enjoyment
of the building? Suggests a chattel
If not a fixture, then a chattel so can be removed
Garden ornaments: could be regarded as a fixture if they form
part of the architectural design
Rights in the land
o Proprietary rights – can be enforced by action in rem meaning possession
can be recovered
o Personal rights – Only bind the original parties to the right, cannot be
enforced against a third party
Estates in the land
o Freehold Estate: Fee Simple Absolute in Possession
o Leasehold Estate: Estate granted in term of years absolute
Sub-lease: lease granted by leaseholder for a lesser duration of their
own lease
Legal interests in the land
o Capable of being legal
Mortgages
Easements
Leases for 5 years or more
o Equitable-only rights
Restrictive covenant
Option to buy
Estate Contract
Easements for uncertain duration
Beneficial interest
o Statutory right
Allows a spouse or civil partner to occupy the family home, regardless
of whether they are the legal owner
Co-ownership and Trusts
Legal title – both owners are trustees equally
Equitable title – both hold the property for themselves in equity
o Joint tenancy in equity – held in equal shares, right of suvivorship
, o Tenancy in common in equity – held as a distinct share, passes outside of
survivorship
Severance of joint tenancy will result in a tenancy in common
Notice in writing – unequivocal intention served to them or last
known place of abode/business by postal or hand
Unilateral act by one joint tenant
o Total alienation – sale or gift of interest
o Patial alienation – disposes of interest by mortgage
o Involuntary – bankruptcy
Mutual agreement
Mutual conduct
Resolution of disputes under TLATA 1996: Gives court jurisdiction to hear
applications – main consideration is whether the purpose was continued.
o Factors considered
Intentions of the persons
Purposes for which the property subject to trust is held
Welfare or a minor
Interests of a secured creditor
Four unities for a joint tenancy:
o Unity of possession – no co-owner can be excluded from any part of the land
o Unity of interest – same nature and duration
o Unity of title – same document
o Unity of time – interest vests at the same time
Easements
A right in the land
Legal easements
o Must be for a freehold or leasehold term
o Created by deed
o Or by prescription at common law for 20 years
Test for express easements – Re Ellenborough Park
Dominant and servient tenement
Right accommodates the dominant tenement
Diversity of ownership
Right lies in grant
Cannot involve additional expenditure or permission
Implied easements
o Necessity – narrow scope, must be absolute necessity
o Common intention – narrow scope, lease for particular purpose, easement
will be implied into.
o Wheeldon v Burrows – operates to imply easement into a transfer deed
Quasi-easement
