The Relevant Law - Report Example

Jayne inherited a house from her aunt. She agreed that her husbands cousin, Tom, who had to leave his matrimonial home on break up of his marriage, could occupy the house on licensee. She told him that he could change the fittings of the house if necessary but was not to alter or move the fixtures on the property. She has now discovered that Tom has demolished a lean-to shed in the garden and, in doing so, found a valuable ring within the shed. She has also learnt that Tom is planning to redecorate, involving stripping and replacing the wallpaper in the lounge, replacing the lino in the kitchen and installing new bathroom fittings. Jayne has a separate problem in relation to her own house, which she occupies. A Family has recently moved into the adjoining property and children there have been flying kites that have strayed over Jayne’s garden. A. You are a trainee in a firm of solicitors consulted by Jayne. Your principle has asked you to research the relevant law and report to the principle (in 1000 words) on what are the legal principles and the most directly relevant cases regarding (a) whether the shed, the lino, the wallpaper, and the bathroom fittings are legally classified as fixtures. (b) whether Jayne or Tom has a better right to the ring (c) whether Jayne can object to the over-flying kites and obtain an injunction to stop this happening. Your principle will then formulate the advise to be given to Jayne. B. Explain precisely in (in 550-600 words) what was your research strategy and how you carried out the research, giving details of the electronic searches that you made. Outside the word limit, give a bibliography of all books and databases used to carry out the research, and give a list of all cases that you consulted (whether or not actually used in part A of your answer), with their references. Report in relation to Jayne’s rights in the above Principle matters to be explored 1. The status of the shed, lino, wallpaper and bathroom fittings- should these be classed as fixtures? 2. Ownership of the ring 3. Possibility of an injunction with regard to the kite 1. Fixtures When considering whether the above can be regarded as fixtures it is necessary to consider whether the court would regard these items as chattels or fixtures. According to the maxim of ‘quicquid plantaur solo, solo cedit’ which translates to mean that whatever is attached to the soil becomes part of it. This principle also governs items that are fixed within the confines of the property as well as items in the grounds of the property. In Elitestone Ltd v Morris [1997]1 the House of Lords divided the category of fixtures into chattels that have become part and parcel of the land and other fixtures. When considering which items would be regarded as fixtures it is necessary to examine previously decided cases. From previous cases it can be noted that the purpose of the annexation is often the deciding factor in determining whether an item should be regarded as a chattel or a fixture. In Botham v TSB Bank Plc (1996)2 Roch LJ identified four guidelines when deciding whether an item was a chattel or a fixture. He pointed out that ornamental items attached to the building simply for their display and enjoyment are prima facie chattels, and items that can be removed without damage to the building should also be regarded as chattels. In terms of the above, the shed could be regarded as a fixture as it was attached to the property itself, and removal of this might cause damage to the building. If the shed had been a free standing shed it is possible that it would be regarded as a chattel. In H E Dibble Ltd v Moore3 it was decided that a wooden greenhouse was capable of being moved so was not a fixture. The wallpaper could be regarded as a fixture4, however, this could be regarded as of decorative value only, and therefore the court could consider that it is a chattel. In D’Eyncourt v Gregory (1866)5 statues that were part of the design of the property were regarded as fixtures. By contrast in Leigh v Taylor [1902]6 the House of Lords held that the tapestries that were attached to the walls was for their better enjoyment as tapestries. A similar decision was reached in Berkley v Poulet (1976) 7 in which pictures were regarded as chattels. The lino and the bathroom fittings8 are likely to be regarded as fixtures due to the annexation of these to the property. If the courts decide that these items are fixtures they will then examine whether there are circumstances where the owner might be entitled to remove them. The courts decide whether the chattel is a fixture by looking at the original owner intention. Intention can be inferred from the degree and purpose of the annexation9. If the wallpaper, lino and bathroom fittings can be regarded as fixtures Jayne can prevent Tom from removing these. With regards to the shed, Jayne could claim against Tom for removing this, as it is likely that this would be regarded as a fixture as it is attached to the building. 2 Ownership of the ring In general terms items found become the property of the finder subject to a claim by the rightful owner10. In Armory v Delamirie (1722)11 the appellant had found a jewel in the setting of a ring. The appellant took this to the respondent, who was a goldsmith, to obtain a valuation. An apprentice of the respondent removed the gems and when he returned the ring to the appellant did not replace the gems. The court held that both had rights over the jewels despite the fact that neither was the true owner of the ring. In the situation where property is found on the land, items found often become the property of the landowner if the true owner cannot be located12. Case law has recognised that items attached to land or found under the land belong to the owner of the land, regardless of the rights of the finder of the property13. In Elwes v Brigg Gas Co (1886)14 Chitty J made it clear from his decision that he regarded lawful possession or ownership of the land as determining ownership of items attached to or buried on the land, whether the owner of the land is aware of the presence of the item or not. Similarly in Waverley Borough Council v Fletcher [1995]15 the court held that the council had the better right over the brooch found by the respondent, who had been using a metal detector in the park. The court accepted the right of the respondent to be in the park, as it was a public amenity; however, the court stated that the respondent did not have permission to use the detector in the park. As the ring was found inside the shed it could be argued that it was not physically attached to the property or under the land. It is therefore necessary to consider ownership of items not attached to the land. In Parker v British Airways Board [1982]16 the court held that the finder of the bracelet had a better right of ownership than the airline company in whose lounge the item was found. By contrast in Hibbert v McKiernan [1948]17 the court held that the golf balls found by the appellant belonged to the golf club. This was based partly on the fact that McKiernan had been employed by the golf club to ensure to protect the interests of the club, and McKiernan had arrested the appellant with the balls in his possession. Applying this to the above, the court may decide that the ring belongs to Jayne as she owns the property. However, using the case of Parker, the court might hold that Tom has a better right to ownership. 3 Injunction It is necessary to consider the law with regard to airspace in this matter. For this consideration needs to be given of cases such as Kelsen v Imperial Tobacco [1957]18 where the court refused to grant an injunction to stop the defendants erecting an advertising sign that projected into the airspace above the claimants shop. They did, however, award damages based on the fact that the sign trespassed on the claimant’s airspace. Similarly in Bernstein v Skyviews and General Ltd (1978)19 the court granted an injunction against the use of cranes over the claimant’s property20. The court in Bernstein pointed out that there could never be ownership of the upper stratum only the lower stratum. They emphasised in Kelsen that such rights can only be reasonable for use and enjoyment of the property. In Corbett v Hill (1870)21 the court held that the plaintiff owned the airspace above him, including the area that was overhung by the defendant’s property. Applying this to the above, the court may well decide that an injunction can be issued with regard to the kites. Research strategy In order to prepare the above report I started off by analysing the various areas that this problem addressed. I identified 3 specific areas of property law. From this I went onto Westlaw and did a Boolean search of the 3 areas, which generated a number of cases which might assist. I narrowed down the search using specific wording from the problem question including the definition of chattels and fixtures. I also consulted the textbooks listed below, from which I was able to establish the legal principles needed to solve the problem. Below is a list of cases accessed either through the internet or from textbooks, which I used as authorities to back up my propositions with regard to the prospect of success for Jayne. I also used Google to find articles on the internet. The following site was extremely useful for the first section in relation to fixtures http://www.oup.com/uk/orc/bin/qanda/sample_chapters/wilkie_chap02.pdf. From my lecture notes I found some cases which were relevant to the problem, and I searched these on the internet to ascertain the facts of the case. Some of these were also in the textbooks I used and on the internet websites I accessed. http://free-law-books.troy.rollo.name/possession.pdf- this particular website was especially useful when dealing with the issue of items found on land belonging to another. Several of the cases mentioned within the lecture noted were mentioned on this site, and I noted the way the facts of these cases could be applied to the problem question. I employed a similar method of applying the facts of the cases to the problem question which helped me to determine whether Jayne would be likely to succeed in her claims. Some of the cases mentioned in the lecture notes I found difficulty finding, and so therefore using bailli and westlaw I found other cases to assist in the matter. When trying to find some of the cases listed in the lecture notes with regard to the ownership of airspace, I used a Google search. One of the sites which this generated was this http://www.unlockingthelaw.co.uk/samples/land%20law%20chapter%201.pdf. This site was extremely useful as it dealt with most of the cases quoted in the lecture notes. I could not find a case dealing specifically with the flying of kites over property. The only cases I found in relation to kites was in respect of the height restriction of kites so as to not encroach on international airspace. As a result it was not possible to give a definitive answer in relation to the prospect of an injunction being granted. Bibliography Ashburner, W, Principles of Equity, 2nd Ed, 1933, Butterworths Bryn Perrins, Understanding Land Law, 3rd Ed, 200, Cavendish Publishing Ltd Civil Procedure, The White Book, Volumes 1 & 2, 2002, Sweet & Maxwell Cockburn, T & Shirley, M Equity in a Nutshell, 2005, Lawbook Co Dixon, M. Modern Land Law, 5th Ed, 2005, Cavendish  Gravells, N P, Land Law Text and Materials, 2nd Ed, 1999, Sweet and Maxwell Gray, K & Gray, S, Elements of Land Law, 4th Ed, 2005, Oxford University Press Harris, P, An introduction to Law, 4th Ed, 1995, Butterworths Hayton, D J , Commentary and Cases on The Law of Trusts and equitable Remedies, 11th Ed, 2001, Sweet & Maxwell Holdsworth, W, History of English Law, 7th Ed, 1956, Mathuen & Co Ltd Pearce, R & Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed, 1998, Butterworths Slapper, G & Kelly, D, The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd Solicitors Journal, 13 September 2002, p801 Thomas, M, Statutes on Property Law, 8th Ed, 2001, Blackstone’s Zander, M, The Law-Making Process, 3rd Ed, 1988, Weidenfield & Nicolson http://www.landregistry.gov.uk http://www.propertylawuk.net www.bailli.org www.opsi.gov.uk www.westlaw.ac.uk http://www.oup.com/uk/orc/bin/qanda/sample_chapters/wilkie_chap02.pdf http://free-law-books.troy.rollo.name/possession.pdf http://www.unlockingthelaw.co.uk/samples/land%20law%20chapter%201.pdf Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd [1987] 38 BLR 82. Armory v Delamirie (1722)1 Strange 505 Berkley v Poulet (1976) 242 EG 39 Bernstein v Skyviews and General Ltd (1978) QB 479 Botham v TSB Bank (1997) P & C R D1 Botham v TSB Bank Plc (1996) 73 P & CR D1 City of London Corp v Appleyard [1963] 1 W.L.R. 982 [1963] 2 All E.R. 834 (1963) 107 S.J. 650 Climie v. Wood (1868) L.R. 3 Ex. 257, 260 Corbett v Hill (1870) LR 9 Eq 671 D’Eyncourt v Gregory (1866) LR 3 Eq 382 Elitestone Ltd v Morris [1997]1 WLR 687 Elwes v Brigg Gas Co (1886) 33 Ch D 562 H E Dibble Ltd v Moore [1970] 2 QB 181 Hibbert v McKiernan [1948] 2 KB 142 Holland v Hodgson (1872) LR 7 CP 328 Kelsen v Imperial Tobacco [1957] 2 QB 334 Leigh v Taylor [1902] AC 157 Lord Chesterfield’s Settled Estates [1911]1 Ch 237; Re Whaley [1908] 1 Ch 615 Moffat v Kazanna [1969] 2 QB 152 Parker v British Airways Board [1982] QB 1004 Waverley Borough Council v Fletcher [1995] 4 All ER 756 Read More