Property Law notes
Physical Dimensions.
RIGHTS ABOVE SURFACE →The owner’s rights in airspace should be restricted to “any such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it”. If within this meaning their may be an action in trespass. – Berstein v Skyviews and General Ltd. S 2(1) of the Damage by Aircraft Act 1952 precludes action in trespass for overflying aircraft.→ An intrusion by a land based structure located on the defendant’s land constituted a trespass to the plaintiff’s airspace - Anchor Brewhouse v Berkley House.
RIGHTS BELOW SURFACE→ Minerals are excluded →Gold/Silver are excluded because of royal prerogative→ Legislation (coal, petroleum, atomic)→ Reservation (where the crown grants land, fee simple, except the right to minerals)
STRATA SUBDIVISION→ Land may be subdivided horizontally into separate strata, with different person owning the different strata. Applies both above and below the land.
How can a Property’s Boundaries be Ascertained?
TIDAL BOUNDARIES→ Where land is bounded by tidal water, such as the sea or tidal river or a tidal lake, the boundary is the mean high water mark. The mean high water mark is the line of the medium high tide between the highest tide each lunar month and the lowest tide each lunar month averaged out over the year – Attorney-General v Chamber.
ROADS AND NONTIDAL WATERS→ Ownership of land is presumed to extend beyond that boundary and up to the middle line of the road or water. This is the middle line rule. This can be rebutted by a clear indication that the parties did not intend title to pass up to the middle line. Usually this is achieved by an unambiguous indication in the Crown grant or a later conveyance - Williams’s v Booth.
ROADS→ S 172(8) of Crown Land Act: where land alienated by the Crown has boundary adjoining a road created by the Crown, no part of the road passes with the land→ S 145 of Roads Act: Ownership of roads is vested in the specified authority → RTA:
RIGHTS ABOVE SURFACE →The owner’s rights in airspace should be restricted to “any such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it”. If within this meaning their may be an action in trespass. – Berstein v Skyviews and General Ltd. S 2(1) of the Damage by Aircraft Act 1952 precludes action in trespass for overflying aircraft.→ An intrusion by a land based structure located on the defendant’s land constituted a trespass to the plaintiff’s airspace - Anchor Brewhouse v Berkley House.
RIGHTS BELOW SURFACE→ Minerals are excluded →Gold/Silver are excluded because of royal prerogative→ Legislation (coal, petroleum, atomic)→ Reservation (where the crown grants land, fee simple, except the right to minerals)
STRATA SUBDIVISION→ Land may be subdivided horizontally into separate strata, with different person owning the different strata. Applies both above and below the land.
How can a Property’s Boundaries be Ascertained?
TIDAL BOUNDARIES→ Where land is bounded by tidal water, such as the sea or tidal river or a tidal lake, the boundary is the mean high water mark. The mean high water mark is the line of the medium high tide between the highest tide each lunar month and the lowest tide each lunar month averaged out over the year – Attorney-General v Chamber.
ROADS AND NONTIDAL WATERS→ Ownership of land is presumed to extend beyond that boundary and up to the middle line of the road or water. This is the middle line rule. This can be rebutted by a clear indication that the parties did not intend title to pass up to the middle line. Usually this is achieved by an unambiguous indication in the Crown grant or a later conveyance - Williams’s v Booth.
ROADS→ S 172(8) of Crown Land Act: where land alienated by the Crown has boundary adjoining a road created by the Crown, no part of the road passes with the land→ S 145 of Roads Act: Ownership of roads is vested in the specified authority → RTA: