Property Law Notes
PROPERTY LAW 2013
Contents
1. Rights Above and Below Land…………………………………………………….
3
2. Fixtures and Related Matters………………………………………………………
7
3. Co – Ownership…………………………………………………………………….
12
4. Easements…………………………………………………………………………..
26
5. Covenants…………………………………………………………………………..
35
6. Adverse Possession………………………………………………………………...
46
7. Native Title Legislation and Indigenous Land Rights Legislation………………...
60
1. Rights Above and Below Land
Cuius est solum eius usque ad coelom et ad inferos – the person who owns land, owns it from the heavens above to the centre of the earth below.
Above the land
Transient Intrusion
It is not considered trespass if it passes through the air without coming into contact with the surface.
However, Recent cases held that transient intrusions into airspace do constitute trespass. Davis v Bennison (1927) 22 Tas LR 52 at 56 held that to fire a bullet across another’s land constitutes a trespass, regardless of whether the bullet touches the surface
In Australia Bendal Pty Ltd v Mirvac Project Pty Ltd (1991)held that the intrusion of a crane jib into the airspace above land is a trespass
Permanent Intrusion
Permanent intrusions are considered trespass however, with the exceptions of telephone wires Wandsworth District Board of works v United Telephone co Ltd 1884 or advertising signs Kelson v Imperial Tobacco Co Ltd [1957]
Height Limitations
No action lies for trespass ‘by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather, and all the circumstances of the case is reasonable, or ordinary incidents of such flight, so long as the provisions of the4 Air Navigation Regulations are duly complied with’.
Bernstein v Skyviews & General Ltd [1978]
‘where the flight of an aircraft ‘many hundreds of feet above the ground’ was held not to constitute a trespass. Griffith J held that a surface owner’s rights in the airspace
Contents
1. Rights Above and Below Land…………………………………………………….
3
2. Fixtures and Related Matters………………………………………………………
7
3. Co – Ownership…………………………………………………………………….
12
4. Easements…………………………………………………………………………..
26
5. Covenants…………………………………………………………………………..
35
6. Adverse Possession………………………………………………………………...
46
7. Native Title Legislation and Indigenous Land Rights Legislation………………...
60
1. Rights Above and Below Land
Cuius est solum eius usque ad coelom et ad inferos – the person who owns land, owns it from the heavens above to the centre of the earth below.
Above the land
Transient Intrusion
It is not considered trespass if it passes through the air without coming into contact with the surface.
However, Recent cases held that transient intrusions into airspace do constitute trespass. Davis v Bennison (1927) 22 Tas LR 52 at 56 held that to fire a bullet across another’s land constitutes a trespass, regardless of whether the bullet touches the surface
In Australia Bendal Pty Ltd v Mirvac Project Pty Ltd (1991)held that the intrusion of a crane jib into the airspace above land is a trespass
Permanent Intrusion
Permanent intrusions are considered trespass however, with the exceptions of telephone wires Wandsworth District Board of works v United Telephone co Ltd 1884 or advertising signs Kelson v Imperial Tobacco Co Ltd [1957]
Height Limitations
No action lies for trespass ‘by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather, and all the circumstances of the case is reasonable, or ordinary incidents of such flight, so long as the provisions of the4 Air Navigation Regulations are duly complied with’.
Bernstein v Skyviews & General Ltd [1978]
‘where the flight of an aircraft ‘many hundreds of feet above the ground’ was held not to constitute a trespass. Griffith J held that a surface owner’s rights in the airspace