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Land | Ownership

Definitions: Property, Land & Fixtures

Revision Note | Degree

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  • under land law property not resource owned but relationship to resource (control & rights)
  • more than one property right can exist at any time
  • property right confer upon a person a degree of control over a resource & usually ability to enforce it against people in general
  • licence: merely permission & not a proprietary interest
  • tenancy: is a proprietary interest

Property: real and personal

  • distinction arose from different remedies: return of thing itself, right in rem (real action leads to real remedy) alternatively return of thing itself or damages, right in personam (personal action leads to personal remedy)
  • recover land (real action) & land is real property (realty) & all other property is personal property (personalty)
  • leasehold property: originally no real action available & leases personalty
  • personal actions concerned with moveable property (a chattel)
  • once fuller rights introduced for leaseholders & as relates to land (immovable property) known as chattels real & all other chattels pure personalty
  • real property (realty) is freehold only & personal property (personalty) can be leasehold land & chattels


  • basic definition of land contained in Law of Property Act 1925 (LPA 1925)
    • s.205(1)(ix):defines Land to include: land of any tenure, mines & minerals, buildings or parts of buildings, corporeal hereditaments & incorporeal hereditaments
  • hereditament is pre-1926 term for property inherited upon intestacy: corporeal (visible & tangible rights such as building or land) & incorporeal (intangible rights over land)
  • licence not hereditaments as is personal permission & not capable of being passed on to heir

Land: airspace

  • latin maxim suggests owner of land owns everything up to heavens & down to centre of the earth (cuius est solum eius est usque ad coelum et ad inferos)
  • caselaw has developed meaning

    • Lord Ellenborough: invasion of airspace above C's land was not trespass
    • unreasonable to impose trespass for example firing a shot gun & flying a balloon over land

    Kelsen v Imperial Tobacco [1957] 2 QB 334


    • claimant (C) seeking an injunction to restrain defendants(D) from placing advertising sign on wall of adjoining premises, on grounds sign projected into airspace above C's shop
    • C had to show he owned the airspace to establish trespass (sign did not amount to nuisance)


    • did the sign amount to trespass of C's airspace?


    • McNair J: sign amounted to a trespass of C's airspace & granted injunction


    • C argued D trespassed on his land when taking aerial photos


    • does landowner's rights in airspace extend to an unlimited height?


    • Griffiths J: I can find no support in authority for the view that a landowner's rights in the air space above his property extend to an unlimited height
    • correct approach: balance rights of owner to enjoy use of land with rights of general public to use airspace
    • owner's rights restricted to extent of airspace necessary for ordinary use & enjoyment of land & structures, above that height owner has no greater rights than anyone else


  • generally chattels are movable items & personalty but chattels attached to land can become fixtures & part of realty
  • if contract to purchase a house is not clear issues can arise as to what items are included in the sale (whether chattels or fixtures)
  • two tests developed to identify a fixture rules developed to overcome

    Berkley v Poulett [1977] 1 EGLR 86


    • C bought estate from D
    • C claimed following items were fixtures & included in sale: pictures firmly fixed into recesses in the panelling of two rooms, a white marble statue, weighing approximately half a ton & standing on a plinth fixed into the lawn & a sundial resting on a pedestal within the grounds


    • what test should apply in determining if items are fixtures?


    • test 1: method & degree of annexation, requires physical annexation to land
    • maxim: whatever is attached to the soil becomes part of it (quicquid plantatur solo, solo cedit) & presumption chattel become fixture but may be rebutted by test 2
    • test 2 : object & purpose of annexation
    • if purpose to enhance realty: object resting on the ground by own weight alone or object lightly affixed & can be removed without causing damage , still may be fixture
    • if purpose of annexation to enable object to be enjoyed in its own right: more likely chattel not fixture
    • pictures not fixture: not part of composite mural & had been put there to be enjoyed as pictures only
    • sundial not fixture: small & had been detached from pedestal many years before sale, so not part of realty
    • statue not fixture: could easily be removed from plinth, owner could choose what to place on plinth
    • plinth was fixture: firmly fixed to ground & siting architecturally important
  • caselaw has further developed identification of chattels & fixtures


    • C was seeking to recover possession of land (including a bungalow on the land) from D
    • bungalow rested by its own weight on concrete pillars & the pillars were attached to the ground
    • D argued the bungalow formed part of the realty & therefore he had a tenancy & was protected by Rent Act 1977 from being evicted


    • was the bungalow a chattel or part of the realty?


    • Lord Lloyd: avoided using term fixture: not usually building itself & tenants' fixtures could be removed
    • 3-fold classification should be adopted, an object brought on to land can be: (a) a chattel, (b) a fixture (realty) or (c) part and parcel of the land itself (realty)
    • bungalow was part of realty: intended to form part of realty as only removed by destruction & lack of attachment not prevent bungalow being realty

    TSB Bank v Botham [1996] EGCS 149


    • C had a mortgage over D's flat & when D defaulted, C sold the flat


    • whether items in the flat were fixtures or chattels?


    • indicator: ability to remove without damaging fabric of building
    • fixture: if objectively item intended to be permanent & afford lasting improvement to property
    • ornamental: attachment temporary & no more than necessary for item to be used & enjoyed (chattel)
    • cooker: freestanding & attached by electric flex (chattel) but if split level with hob in surface (fixture)
    • bathroom fittings: including taps, towel rails & soap dishes (fixtures)
    • kitchen units: degree of annexation & intention to effect permanent improvement to kitchen & flat (fixtures)
    • carpets & curtains: insubstantially attached & only to extent required for enjoyment (chattels)
    • white goods: degree annexation slight as can be bought separately & designed to last for limited period, also disconnection will not damage building
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