Rights Enjoyed by an Owner of an Interest in Land - Coursework Example

Rights enjoyed by an owner of an interest in land Part A: Introduction: England and Scotland share several similarities in respect of the rights that are associated with land. Fishing rights are private and transferable in both countries, albeit rarer to find in England. Mineral rights in both countries are also mostly owned by community bodies or estates. The two countries differ mostly in terms of levels of access to property, and these elements are detailed further below. Mineral Rights: In most countries, mineral rights belong to the Government and include valuable rocks, minerals, oil and gas found below the surface of land. This means that the rights of the owners of land are restricted, in that they cannot sell any of these commodities without obtaining the permission of the Government (www.geology.com). In the U.K, not all mineral rights are under general State ownership, except for the rights to mine precious metals like gold and silver which belong exclusively to the crown rather than to the owner. Licenses for mining these minerals have to be issued by the Crown Estate Commissioners. Additionally, the rights to energy minerals also belong to the State (www.bgs.ac.uk). The rights to other minerals are privately owned but not necessarily by the individual surface owners of the land. In certain areas, private organizations such as Church commissioners or the Crown estate may own mineral rights over large areas. (www.bgs.ac.uk). This is also the case in Scotland, where individual owners only have surface rights over their property, while the rights to subsurface minerals rest with large estates that own the mineral rights to their lands. Water Rights: Water rights in the UK has its origins in common law principles and operates on the basis of riparian rights, whereby lands that are near a source of water will have uniform rights of access to the water. Riparian rights generally apply only in the context of land that is privately owned1. (Hutchins et al, 2004: 15). Where ground water is concerned, the rights may be publicly or privately owned; in the case of groundwater owned by the State, distribution occurs through an appropriation system. Private property owners will have the rights to the groundwater associated with their properties; the right for production based upon this ground may be unlimited or limited depending upon the extent of land ownership or upon liability rules. For example, the rule of capture applying to either water or oil extracted from below the surface of the land means that the first person to gain control of the resource automatically acquires the right over that resource, even if it is actually being sourced from another piece of property. In the case of Acton v. Blundell,2 the Court held that “the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure”, and if the water or other resource is being drained off another person’s property, this is one of the injuries for which there can be no remedy at law. In some instances, ground water rights on private property may be correlative. This means that the amount of ground water available to each property from common sources will depend upon the surface area of the land belonging to each property owner. The Riparian system applies on property rights on lands in both Britian and Scotland. Fishing and gaming Rights: In both England and Scotland, the right to fish is a privately owned right, which is also transferable. On this basis, the owners of fishing and gaming rights on land and adjoining water can also sue those who pollute the streams3. Fishing rights may generally be owned by local fishing clubs and may not generally be within the exclusive province of a private land owner unless the land owner in question owns the entire estate on which the particular water body is situated. In England, it is rare for private land owners to also own the fishing rights to the water that may be part of the property. Fishing rights in waters are generally not available because they may been sold off by earlier owners to local fishing clubs or auctioned off. (www.findaproperty.com). In Scotland however, a private land owner may also be able to acquire fishing rights on water fronting the property, especially if the property is a large estate that has been subdivided into smaller plots. Unlike England, there are still properties available where fishing rights are also available with the properties. Thus Scotland differs from England in that fishing rights may still be associated with the properties. The value of the fishing rights on the land in question will generally be worked out on the basis of the catch records. (www.findaproperty.com). Right of access: In Scotland, the reforms that have been instituted by the Land Reform (Scotland) Act 2003 has expanded the scope of easement rights by granting a statutory right of access to the general public to most lands, thereby impacting upon the rights of the private property owner. The Scottish Parliament has granted citizens the statutory right to roam, so that people have no right of access over land in private houses that is required for privacy, but beyond that rights of passage are allowed (Corbett and McEwan, 2008). This allows easement rights and rights of access that are far above that which is offered in England. The right to roam is also granted to people in England by way of the Countryside and Rights of Way Act 2000, which came into force on November 30, 2000. However, not all sections of the Act have commenced, as a result only some parts of it are currently in force. The Act allows individuals the right to access and freely roam over upland and uncultivated areas in England and Wales. But its scope is much more restricted as compared to the Act in Scotland. In England, under the Land Registration Act of 2002, easements that have been in existence on private land and allow the right of passage through private properties constitute overriding unregistered interests which override registered dispositions (Sexton, 2006). Hence, this also allows the right of access over private land to certain individuals, but the scope of this access is restricted to those who need to use the easement over private land as a right of way and may not fall within the scope of the right to roam. The right granted to persons other than the freehold owner of the land are not absolute and unrestricted. Express easements which have been granted out of registered land cannot override after 13 October 2003 (www.practicalconveyancing.co.uk). This time frame has placed a limit on interests that can be enforced on right of way and the right to access private lands, thereby allowing owners of properties to retain exclusive rights to ownership of property. As opposed to the UK that seeks to restrict the interests of those who wish to use easements, Scotland seeks to encourage and protect the interests of those who use easements, since citizens have been granted the right to roam freely. While the use of an easement that infringes upon the privacy of an individual home owner may be contested, this is not so for the rest of the property and it would be difficult for a freehold owner of land in Scotland to bring action against the use of an easement. Conclusion: Comparing the various rights in the two countries, it must be noted that the rights over precious minerals like gold and silver, and energy minerals like oil become the property of the Government. Private land owners may not have any rights over these mineral resources. Where other mineral resources are concerned also, the ownership is likely to rest in the hands of private community organizations. In Scotland, mineral rights on individual properties are likely to be associated with the estate of which the private land is a part. The rights of easement users in land and the rights of access of the public to private land is almost unrestricted in Scotland, with only private areas being held to be out of bounds for purposes of access. The right to roam is also allowed in England, but only over uncultivated lands, while private lands would require a right of access by way of easements before they can be used. Fishing rights in both England and Scotland are private rights, although in England, fishing rights generally belong to local fishing clubs. PART B: The United States differs from England and Scotland in respect of some of these rights, as further detailed below: Mineral Rights: In the United States, unlike England and Scotland, owners of land are granted complete private ownership in terms of all rights over land, which is known as fee simple estate (www.geology.com). As a result, the owner of the land controls the surface, the subsurface and the air above a property, and mineral rights will therefore belong to the owner of the property rather than to the Government. The owner of the property will then have the right to retain rights over surface ownership of the land, while selling off the mineral rights to companies. These companies in turn can retain the mineral rights for several years and ownership of these rights will continue on the Company’s behalf even if the title and ownership to the surface land changes. Water Rights: Riparian rights in water, based upon common law principles, are also applicable in the context of property ownership rights for private lands in the United States. However, there are certain qualifications that apply in this country. While the right of capture was earlier applicable in states in California, now replaced by correlative riparian rights (Hutchins et al, 2004) most states now follow a standard of reasonable use in allocating rights to property owners to water on their land. According to this rule, the landowner is not guaranteed a certain amount of water, rather s/he can resort to unlimied extraction up to the point where it does not cause any unreasonable damage to the wells of other property owners or cause any damages to the acquifer. Rights of Access: In the United States, a property owner is provided with a bundle of rights associated with a property, including the right of control and enjoyment as well as the right of exclusion of others from the property. (Kimmons, No Date). This specifically allows land owners in the United States to exclude the passage of easement users over their property in the interest of protecting their privacy. This is opposed to the practice in Scotland, especially in reference to the recent right to roam, which has been granted to citizens by virtue of the reforms introduced in 2004. While the right of members of the public to roam underlies property rights in the United States, it has not been formulated into law, as in Scotland the U.K. This does not indicate that easement rights, and the rights to gain access over private properties do not exist in the United States. The existence of a valid easement which allowed for a right of way was established in the United States in the case of Suffolk County, Breakers Motel Inc. et al. v Sunbeach Montauk Two Inc. A trend that is becoming increasingly common in the United States is the rising incidence of conservation easements, which are essentially legal agreements between property owners and conservation organizations, which are generally non profit trusts, limiting the scope of developments that can be undertaken on the property (Gustanski and Squires, 2000). The absolute rights of property owners in the United States is somewhat limited by conservation easements, because the owners are obliged to retain certain portions of lands for the benefit of the environment and future generations. However, on an overall basis, the enforcement of other kinds of easements, allowing rights of way over property is restricted in the United States, because of the rights granted to these property owners to exclude others from their property. In Scotland, the right to roam which has been allowed by the Scottish Parliament would favor the use of an easement as a general principle, but in the United States, the rights of property owners to exclude others from their property is likely to prevail over the rights of others to use easements in most instances. Fishing Rights: In the United States, fishing and gaming rights are not privately owned. In general, members of the public will be allowed to freely access water bodies for fishing, unless the waterbody in question happens to be located entirely within the boundary of a large estate. Any restrictions placed on hunting and fishing on certain lands is generally issued by public regulatory authorities. Conclusion: In comparing the rights of owners of properties in the United States with those in England and Scotland, it may thus be noted that the scope of rights enjoyed by land owners in America is more wide ranging and extensive as compared to those in England and Scotland. The right to roam may be somewhat restricted in the United States as compared to the other two countries because of the comprehensive bundle of rights that is allowed to a property owner in the United States, which allows a greater scope of rights for the private owner. This expanded scope of rights also applies in terms of mineral rights, allowing the freehold owner to dispose of the rights to use minerals on his land. But private fishing and gaming rights may be restricted except in very large estates. Bibliography * A River runs through it: Property with fishing rights”, http://www.findaproperty.com/displaystory.aspx?edid=00&salerent=0&storyid=9869, * Corbett, Robin and McEwan, Anthony, 2008. “Land Law Reform”, http://www.biggartbaillie.co.uk/ideas--insights/all-articles/property/land-law-reform.aspx, * Hutchins, Wells A, Ellis Harold H and DeBraal, Peter J, 2004. “Water rights laws in the Nineteen Western States”, The Lawbook Exchange Ltd. * Kimmons, James, No Date. What is the bindle of legal rights of a real estate owner? http://realestate.about.com/od/ownershipandrights/f/bundle_of_right.htm, * Mineral Rights. http://geology.com/articles/mineral-rights.shtml, * Legislation and Policy: Mineral Ownership. http://www.bgs.ac.uk/mineralsuk/planning/legislation/uk_minown.html, Cases cited: * Acton v. Blundell, 12 Mees. & W. 324, 354, 152 Eng. Rep. 1223, 1235 (Ex. Ch. 1843). * Suffolk County, Breakers Motel, Inc. et al. v Sunbeach Montauk Two Inc. (New York Law Journal, March 23, 1994 pg. 28, col. 5) Read More