land law Resources

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The Definition Of Land

'Land' includes land of any tenure, and 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 corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land: Law of Property Act 1925 s 205(1)(ix)

'Land' also includes land covered with water: Land Registration Act 2002s 132(1).

Where a person 'owns' a piece of land, what they in fact own is an estate in the land which is defined by the length of time of their ownership and the physical boundaries - these are usually as outlined on the title plan although such outlines are for general guidance (See Land Registration Act 2002, s.60(1)-(2)) and the actual boundaries are defined by reference to both the plan and to other evidence - subject to a number of rules such as the 'hedge and ditch' rule and 'ad medium filum'.

Estates in land may be classified as corporeal and incorporeal hereditaments (a hereditament is any real property which on an intestacy occurring before the commencement of this Act [1 Jan 1926] might have devolved upon an heir: Law of Property Act 1925, s.205(1)(ix)). A corporeal hereditament refers to a tangible and physical aspect of the land, whereas an incorporeal hereditament refers to intangible rights that may be enjoyed in, over or in respect of the land. Collectively, corporeal and incorporeal hereditaments are referred to as 'realty', as distinct from 'personalty' (which refers to personal or movable property).

Corporeal hereditaments may include aspects that are substantial and permanent, which 'affect the senses', and which are constituted by or connected with immovable property. Examples include things that make up the surface (the 'solum') of the land - rock, earth, etc, and things that are attached to or inherent in the ground; buildings, trees, subjacent minerals and some portion of the superjacent airspace (Mitchell v Mosley (1914) 1 Ch 438 at 450). Ownership of such aspects in the land is subject to limitations - unworked coal, for example, is vested by statute in the Coal Authority (Coal Industry Act 1994, ss.1(1), 7(3)) and all rights to petroleum, including mineral oil and natural gas, is vested in the Crown (Petroleum Act 1998 (ss.1(a), 2(1)); also, the Crown may grant exploration and exploitation licences according to s.3(1)). The Crown also has a prerogative right to mines of gold and silver (Case of Mines (1568) 1 Plowd 310 at 336, 75 ER 472 at 510).

A further qualification is as to the airspace above the property, curtailing the applicability of the 'cuius est solum eius est usque ad coelum et ad inferos' maxim. It is now accepted that the land owner is entitled to the portion of immediate superjacent airspace whose effective control is necessary for the landowner's reasonable enjoyment of his land at ground level (Bernstein of Leigh (Baron) v Skyviews & General Limited (1978) QB 479 at 488A) . Accordingly, there is no right, in terms of owning airspace, to prevent planes from flying above one's property although in Britain, the Rules of the Air Regulations 1996 (SI 1996/1393) Schedule 1, Regulation 5(1)(e) denote that no aircraft may fly closer than 500 feet to any person, vessel, vehicle or structure. Note that airspace itself can exist as an independent unit of real property (7Macht v Department of Assets of Baltimore City, 296 A2d 162 at 168 (1972) and can thus be conveyed in fee simple (10Reilly v Booth (1890) 44 Ch D 12 at 23), leased (7Macht v Department of Assets of Baltimore City, supra) subdivided (3Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 at 91) and even subjected to land taxes (9Re Trizec Manitoba Ltd and City Assessor for the City of Winnipeg (1986) 25 DLR (4th) 444).

There are two considerations for whether an object is a 'fixture' or chattel. The first is the degree of physical attachment, or 'annexation', to the land. The more permanent an object is affixed to the earth or to a building, the more likely it is that it will be classified as a fixture but in any case, even if the mode of annexation is only slight, its character will be one of a fixture (6Holland v Hodgson (1872) LR 7 CP 328 at 335; 11Stack v T Eaton Co (1902) 4 OLR 335 at 338). In the absence of any connection with the land, and the article is 'no further attached to the land than by its own weight' it will be considered a chattel (Blackburn J in 6Holland v Hodgson supra; see also 5Deen v Andrews (1986) 1 EGLR 262 at 264G and 12Wiltshear v Cottrell (1853) 1 E & B 674 at 689 for further examples). Further, the more difficult it is to remove the item without serious damage, the more likely it is that the item will be seen as something intended to comrprise a permanent enhancement of the realty (see for example Botham v TSB Bank plc (1996) 73 P & CR D1 at D3 per Roach LJ - the contrast here is made between a free standing cooker and that of a split level cooker set into a work surface).