Introduction to Property law

Introduction

Land law is a complex area of law. It is advisable for a prospective buyer, seller and third parties to seek legal advice whenever the property involved is a land or issue is about land or real estate or an interest in the land

There are three ways in which rights in property can differ:

  • Different strengths of property rights
  • Different types of property rights
  • Different sources of property rights

Multiple people can have claims over a single piece of property, and the law typically works by deciding/adjudicating on which has the stronger right. People can have various property interests that provide rights (or restrictions) of usage.

Example

Janet owns a detached house with a large garden. In return for payment, Janet signs a deed granting her neighbour Eugene a right of way over part of her garden, such that Eugene has a short-cut to the road adjoining the other side of Janet’s garden.

Ownership

The owner of the land has three main legal rights over his/her property or characteristics which make him/her the owner of the land

  1. The right to claim in respect of an interference with what is owned also referred to as right to “Title”
  2. The right to use and enjoy the property without being in breach of the rights of others.
  3. The ability to dispose of the thing, by way of sale or gift or by a will on death, so as to pass the ownership rights to another.

Land

Land includes land of any tenure, and mines and minerals……building or any parts of buildings …..and other corporeal hereditaments, also….a rent and other incorporeal hereditaments, and an easement, right, privilege or benefit in, over or derived from land.

Land includes

  • Buildings and other structures
  • Land covered with water and
  • Mines and minerals, whether or not held with the surface LPA 1925 s 132 (1)

Important

The person who owns the land owns everything extending over or under the land and whatever is attached to the ground becomes a part of the land.

Rights in land

There are two types of rights in land

  1. Estates in land
  2. Interests in land

An estate in a land is referred to an ownership of the land for a period of time. There are two types of estates in land

Under freehold the owner of the land owns the land and his ownership may last forever. The owner is free to do whatever he may like with his land. Whereas a lease or a leasehold land provides ownership for a certain time period, for example, 10 years. After that time period, the land will revert back to the freehold owner of the land.

Interests in Land

Third parties may have some rights over the land, but they are fundamentally different to the ownership of the land, which is either freehold or leasehold. These interests may include:

Types of Rights

Personal rights which are enforceable against a person

  • Property rights which are enforceable against the owner of the property for example estates, easements, restrictive covenants, mortgages

Physical Extent of land

The extent of land (i.e. the threshold that determines what objects in or on the land qualify as being part of the land itself) is important for various reasons.

Reasons

  • The land is made up of rights capable of passing to heirs by way of inheritance (Hereditaments)
  • Some are made up of physical land & its’ attachments (corporeal)
  • Some are intangible rights (incorporeal) which someone may have over another’s land, such as an easement e.g. a right of way or a right of light

Rules

  • Fixture; whatever is affixed to the soil belongs to the soil so a prospective buyer must be aware when buying a property that whatever is fixed on the land that will be part of the land and part of his/her estate.
  • Fittings; on the other hand, are not part of the land as they are not affixed to the land, for example, a painting hanging on the wall will be deemed as a fitting and will not be the property of new owner automatically
  • Whether what is affixed to land is a fixture or fitting is decided in the light of the degree of annexation and the purpose of annexation.
  • An object which has been firmly attached to the land is a fixture, while one which is merely resting on its own weight is not
  • Where the object has been fixed for the more convenient use of the land or building rather than for the enjoyment of the thing itself it will likely be a treated as a fixture
  • The things which are intended to become part of the land are likely to be treated as fixture
  • The things which are intended to make a permanent improvement to the land (or building), are also likely to be treated as a fixture and part of the land
  • The things which are attached simply for their best use as chattels will be likely to be treated as fittings and they are not part of the land
  • All fixtures on mortgaged land are included in the mortgage, and the mortgagor may not be allowed to remove them during the currency of the mortgage, even those affixed after the mortgage commenced
  • If something is a fitting it can be removed by the seller of land, whereas if it is a fixture it comprises part and parcel of the land, i.e., it passes to the purchaser

Treasure Troves

under Treasure Act 1996

  • Treasure trove belongs to the Crown alone.
  • Had to be gold or silver (changed please refer to legislation below)
  • Must have been deliberately hidden
  • Real owner unknown or untraced

Treasure Act 1996

Section (1) Treasure is—

(a) any object at least 300 years old when found which—

      (i) is not a coin but has metallic content of which at least 10 per cent by weight is precious metal;

      (ii) when found, is one of at least two coins in the same find which are at least 300 years old at that time and have that percentage of precious metal; or

       (iii) when found, is one of at least ten coins in the same find which are at least 300 years old at that time;

(b)  any object at least 200 years old when found which belongs to a class designated under section 2(1);

(c) any object which would have been a treasure trove if found before the commencement of section 4;

(d) any object which, when found, is part of the same find as—

       (i)  an object within paragraph (a), (b) or (c) found at the same time or earlier; or

       (ii)  an object found earlier which would be within paragraph (a) or (b) if it had been found at the same time.

(2)  Treasure does not include objects which are—

(a) unworked natural objects, or

(b) minerals as extracted from a natural deposit, or which belong to a class designated under section 2(2)

If the property found is not a treasure trove, it will be deemed as the property of the owner of the soil not the finder of the property.

Ownership of treasure which is found in land

When treasure is found, it vests, subject to prior interests and rights—

(a) in the franchisee, if there is one;( to the rightful owner of the treasure, which is very unlikely as the treasure trove may be lying under the land for many centuries and it will normally go to the Crown) 

(b) otherwise, in the Crown.

Reward

The reward may be payable to—

  1. the finder or any other person involved in the find;
  2. the occupier of the land at the time of the find;

Mineral Deposits under the land

The landowner has rights to mineral deposits, except gold, silver, coal, oil and natural gas

Proprietary and Personal Rights

  • Personal rights are those which are enforceable against a specific person
  • Proprietary rights are the rights in the property and therefore enforceable against anyone who owns the property
  • Property rights are enforceable against the new owner of the property
  • Proprietary rights are transferable and can be sold to another person. Whereas personal rights are against a specific person and cannot be transferred or enforced against another person

Example

John granted a right of way to his neighbour Anna. John has sold the property. However, Anna can still enforce the right of way on the new owner as the right of way is a proprietary right

John also promised and allowed Anna to play tennis on his lawn, however, Anna cannot force the right to play tennis against the new owner as the permission given was a personal right.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.