Law of Land & Property – Part 1 - What is Land?

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water

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Land is something that has been occupied, bought. sold, fought over and disputed throughout the course of history in all parts of the World.  Even today land disputes are commonplace, some of which have led to war between the disputing parties where many lives are lost during these conflicts.  Fortunately, not all land disputes lead to war and in fact in my professional career I have dealt with boundary disputes where the disputing parties are arguing over what most people would consider as insignificant pieces of land.  For example where someone has erected a fence and the line or position has been disputed by a neighbour.  In these cases the amount of land being disputed is usually very small.

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water.  Think of an image of the World which shows the mass of the continents and countries, surrounded by seas and oceans and you will see the perception of what most people consider as land.  Whilst this perception does in fact demonstrate some land, we will see that the legal definition of land in the UK is far wider.  The Law of Property Act 1925, s205(1)(ix), provides a definition of land (see below) which at first glance seems confusing, complicated and difficult to interpret.  This is because it uses some language and terminology that has evolved over many hundreds of years and is not commonly used today; 

“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; and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;

It is worth however persevering with this definition in order to understand the scope and context of what land actually is.  Firstly, the definition states that land ‘includes…’ This suggests that the definition provided, as confusing as it is, is only in fact a partial definition and has the potential to include other things. Also, ‘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)’, suggests that land is more than just a two dimensional flat area and in fact is three dimensional, including not only the surface of the land, but also the ground beneath (subterranean space) and the airspace above.  The wider definition of land is sometimes expressed in the Latin term ‘cuius est solum eius est usque ad coelum et ad inferos’ which translated means ‘he who owns the land owns everything reaching up to the very heavens and down to the depths of the earth’. Although it is correct that land includes airspace and subterranean space, we will see that these rights are not unlimited.

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Subterranean Land – If for example a landowner wants to add a basement to their property then they are free  to excavate below the ground to allow for its construction.  This is something that may be considered when land availability is restricted to add space and value to a property (subject to obtaining statutory permissions such as Planning Permission and Building Regulations Approval and other permissions where appropriate). Section 205(1)(ix) of the Law of Property Act states, ‘mines and minerals form part of the land’ – however certain ‘minerals’ are restricted from belonging to the land owner by statute. Gold or silver automatically belong to the ‘Crown’, which is the case across the whole of the UK.  Also, the Crown is entitled to oil, petroleum, coal, and natural gas by virtue of the Coal Industry Act 1994 and the Petroleum Act 1998.  It is therefore clear that land includes subterranean land however it has been shown that rights are sometimes limited.  The discovery of ‘treasure’ is also covered by statute and this is something I will discuss in a future article.

Airspace – By virtue of the Law of Property Act 1925 a landowner owns the airspace above their land, however as with subterranean land these rights are sometimes restricted.  If a landowner actually owned the airspace ‘up to the very heavens’, then effectively they would be able to sue in trespass every time an aeroplane flew over ‘their land’, which would be ridiculous!  However section 76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property ‘at a height above the ground which is reasonable’. The question of reasonableness is a case in point in every action and the courts will refer to previous case law to establish precedent.

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The consideration of airspace is far wider that the impact of aeroplanes passing over ‘land’, and in fact consideration must be given at a much lower level.  Tower cranes are a relevant example from a built environment context which have the potential to trespass onto land of different owners unless permission and/or an oversailing licence have been obtained.  Other examples include Kelson v Imperial Tobacco Co (1957), where a defendant committed trespass by allowing an advertising board to project eight inches into the Claimant’s property at ground level and another above ground level. John Trenberth v National Westminster Bank (1979), where scaffolding erected on a neighbours land constituted trespass and Laiquat v Majid (2005), where an extractor fan at about 4.5 m above ground level, protruded 750mm into the claimant’s garden.

The legal definition of land is clearly wide and in a future article I will explore some of the ‘older terminology’ that is used in section 205(1) (ix) of the Law of Property Act 1925, in order to consider land in its wider context.  This will include an explanation of the terms ‘corporeal and incorporeal hereditaments’, ‘manorial rights’ and ‘advowsen’, and consider what the law says about ‘fixtures’ and ‘chattels’

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