United Kingdom
Ownership of things attached to Land
Historically, the land has been considered to be the most essential
part of property law. The land law of the United Kingdom includes acquisition,
content and priority of rights between individuals having an interest in land.
There is a difference between having a contractual right and a property right
in the land. The latter gives license over other individual’s claims.
Traditionally, the property law of the United Kingdom has been heavily
dependent on common law and equity. It has derived the most common principles
from the common law. However, an essential question has always lingered in
property law which is whether the things attached to the property or on the property
are part of the property or not. One of the distinct features of English law is
the concept of “real property” which essentially means the land as well as the
things that go with it. This is different from having a movable or personal
property. The reason for this distinction is to explain the nature of the subject
matter due to the different tax and registration requirements for land.
Nonetheless, the more technical definition of land entails more information
than it is defined commonly. Law of Property Act 1925 entails a definition of
land which says. “land of any tenure, mines and minerals, whether or not held
apart from the surface, buildings or parts of buildings (whether the division
is horizontal, vertical or made in any other way) and other hereditaments; also
a manor, advowson, and a rent and other incorporeal hereditaments, and an
easement, right, privilege or benefit in, over, or derived from land…” [1]
This unwieldy definition points out two main conceptions. Firstly, land
involves all physical things attached to it whether it be hereditaments or
minerals. Secondly, it explains the intangible rights, for instance, an
easement. The essay gives detail analysis on the case rulings on the topic
which will provide an understanding and a deep analysis of the reasoning behind
the ruling.
In Newlon Housing Trust v Alsulaimen[2], Lord
Hoffmann opined that in legal studies, property in the land could be defined as
a “four-dimensional” right.[3]
This includes the two-dimensional area of the land surface which is secured by
fence or railing to show a permanent marking. This is important because at
times the dispute arises after a contract of selling land has been established
but the contract didn’t lay out the specific details. In Holland v Hodgson,[4] Lord
Blackburn J opined that looms introduced in a manufacturing plant are part of
the land. Items laying on the land, "connected" just by gravity,
won't ordinarily be a piece of the land, except if case law and both parties'
have an alternate intention in the contract. Effectively removable things,
similar to floor coverings and draperies, or houseboats, won't be inferred into
a closeout of land as a matter of course. In Chelsea Yacht and Boat Company
v Pope,[5]
it was opined that a houseboat is not part of the real property or land due to
the reason that the nature of annexation is inadequate. In Botham v TSB Bank,[6]
the judge made a distinction between a chattel and fixture when it comes to
things being part of the land or not. It was opined that the items should be
looked holistically, if the purpose of the object is to improve the building
and is of permanent nature, it becomes a fixture; however, if it something
attached to the land which is of temporary nature and is not essential for the
building enhancement then it will be considered as a chattel. This outlines
that bath, lavatory and bathroom fittings would belong to the category of
fixtures. Moreover, this will also include kitchen sinks and units. However,
carpets, curtains, washing machines, dishwashers and kitchen appliances are of
temporary nature are categorized as chattels.
The distinction between chattels and fixtures is now cleared.
Fixtures are included in the part of property and chattels are not. Now the
question arises, whether the things beneath the land surface belong to the
owner or they part of the land or not? The third dimension of rights is now to
be deliberated. It is considered that mines and things beneath the surface of
land belong to the owner of the surface of land; however, it is restricted to
500 feet beneath. Moreover, the owner of the land has the right over the
atmosphere above his land.[7]
However, the public policy of the state sets limits and restrictions over the
use of the property and the belongings of the property. For instance, from the 16th
century, the Crown put forward a stance that every valuable mineral, natural
resources, and valuable treasure found on one’s property belong to the crown. Moreover,
the law in 20th century made it punishable for not reporting any
treasure found.[8]
In R v Earl of Northumberland,[9] a
full panel of 12 senior judges opined that, “by the law all mines of gold and
silver within the realm, whether they be in the lands of the Queen, or of
subjects, belong to the Queen by prerogative, with liberty to dig and carry
away the ores thereof, and with other such incidents thereto as are necessary
to be used for the getting of the ore.” Moreover, any aircraft or
satellite moving above the atmosphere of the owner’s land does not fall under
the ambit of trespass if the distance is sufficiently high. Lastly, the fourth
dimension right is time. Since 1925 English law perceives two
"bequests" in the land, or sorts of possession intrigue: the freehold
(expense basic), which is a privilege to use for a boundless time; and the rent
(tenure), which is an enthusiasm for a fixed timeframe. In all circumstances,
utilization of the land is obliged by understandings and additionally
restricting rights with neighbours, and the necessities of the nearby board and
government.
It is always
debatable that the objects found on the land are whose property? Often
individuals come across instances where they find something on their land which
does not belong to them. It might be a lost watch, some money or maybe an item
of clothing. However, in some situations, the true owner of such things is not
locatable and is unknown. When such a situation arises, other people have a
right to claim that property. This would mean a person who finds the object, a
tenant (who occupies the land), a landlord and the finder’s employer. One of
the most initial cases that establish the possession of the valuable property
right and talked about the finder’s right is Armory v Delamirie,[10]
This is a famous case that describes the finder’s right. In this case, a
chimney sweep’s boy found a jewel. After obtaining the jewel, he went onto know
the price of the ring at a goldsmith shop. The agent at the goldsmith secretly
removed the gems and refused to return them. The court opined that although
both parties have a right in the jewel as it doesn’t belong to either of them.
However, the question above the court is to identify who has the better right
of possession. The court gave the priority of possession to the finder and gave
him the full title of the jewel. In Moffat v Kazana,[11]
the court opined that if someone finds something on their land which does not
belong to them, the true owner has the proper right to claim the object over
anyone else. However, if the true owner is not locatable and is unknown, then
the question arise who else found the object and his claim against the object.
In a scenario, where a true landowner of the property finds an object whose
owner is unidentifiable, the simple concept is that the person who possesses
the land would be entitled to the object found on the land. This is even the
situation where the landowner was uninformed of the object before it was found
and never demonstrated any goal to control the land. Similarly, in Waverley
BC v Fletcher,[12]
an object which was identified as a gold brooch was discovered beneath the
surface of a public park. The court came up with three reasons to differentiate
things found on the surface of the land and beneath the land because both are
dealt with different treatment. Firstly, an object which is found under the
surface of the land belongs to the owner of the land. It would be considered as
an integral part of his property. Any individual who finds the object should
not remove it from the land without the permission or license of the true
owner. If the individual does so, he would fall under the ambit of a
“trespasser”. Secondly, when a thing is to be removed from the land which is
attached to the land, occasionally this involves intrusion with the land which has
the potential to cause damage to the property. Thirdly, an object found beneath
the surface of the land is unlikely to be found by its true owner; however, an
object on the surface of the land could be lost recently and the owner could
return to claim it.
In South
Staffordshire Water Co. v Sharman,[13]
the plaintiff hired an individual to clean water of his pool. In the course of
cleaning, the defendant found two gold rings and claimed its ownership. The court
opined that the plaintiff has the right to claim the ownership of the two rings
as he is the true landowner. The court identified that he possesses the right
to prohibit any person coming on his land. Moreover, he possesses the right to
claim any property found on his land whether under the pool. Moreover, the
court found that this case is one where the owner of the land was unaware of
the existence of the items. Similarly, in Elwes v Brigg Gas Co.,[14] a prehistoric boat was discovered by a tenant
which was almost six feet beneath the surface of the land. The court opined
that the boat belonged to the true owner of the land. It was held that “he was
in possession of the ground, not merely of the surface, but everything that lay
beneath the surface down to the centre of the earth, and consequently in
possession of the boat…”[15]
When an item is
found on top of the land, the finder of the property is generally considered to
be the owner of the land. The right could be enforced in the court of law
against all except the real true owner of the property. In Parker v British
Airways Board, the court opined that if the true owner comes to claim the
property, he/she would possess the best claim over the lost property. Firstly,
the owner of the land would only be prioritized over the finder of the object
if the former had shown an intention to control the land before the discovery
of the item on his land. Secondly, the finder of the object could only claim
the property if it has been abandoned or lost. Thirdly, the finder would never
have a complete absolute claim over the lost object; however, he/she does have
the right to claim the property against everyone except the true owner of the
property. Fourthly, if a person finds an object in the course of his
employment, he/she has to keep it on behalf of the employer, who would possess
the right over the object and would exonerate the rights of the true finder.
Fifthly, the finder has the obligation to find the true owner of the object.
Sixthly, the tenant or the occupier has more right over the finder of any item
attached to the land or found on the land. Lastly, as stated above the tenant
would have more right over the lost property found on his land as compared to
the finder of that property; however, the tenant should have the prior
intention of controlling the land before the object was found.
Bibliography
Case laws
Armory v Delamirie [1722] EWHC J94
Botham v TSB Bank [1997] 73 P & CR D 1
Chelsea Yacht and Boat Company v Pope [2001] 2 All ER 409
Elwes v Brigg Gas Co. [1886] 33 Ch D 562
Holland v Hodgson [1872] LR 7 CP 328
Newlon Housing Trust v Alsulaimen [1999] 1 AC 313
Moffat v Kazana [1969] 2 W.L.R. 71
R v Earl of Northumberland [1568] 1 Plowden 310 75 ER 472
South Staffordshire Water Co. v Sharman [1869] 2 Q.B. 44
Waverley BC v Fletcher [1995] 4 All ER 756
Legislation
Law of Property Act 1925
Rules of the Air Regulations 2007 (SI 2007/734)
Treasure Act 1996
[1]
Law of Property Act 1925, s 205(1)(ix)
[2]
[1999] 1 AC 313
[3]
ibid
[4] [1872]
LR 7 CP 328
[5] [2001]
2 All ER 409
[6] [1997]
73 P & CR D 1
[7] Rules
of the Air Regulations 2007 (SI 2007/734)
[8]
Treasure Act 1996, s 8(3)
[9]
[1568] 1 Plowden 310 75 ER 472.
[11]
[1969] 2 W.L.R. 71
[12] [1995]
4 All ER 756
[13]
[1869] 2 Q.B. 44
[14]
[1886] 33 Ch D 562
[15]
ibid