Land Law: Rights Above and Below Land

Rights Above and Below Land

What Forms Part of the Land?

To determine what rights a person has over the land, we must also understand what forms part of the land in the first place. There are three problem areas:

Things found on the surface of land. For example, what if B enters C’s land, and finds an object in the grass? Does C’s ownership of the land grant them ownership of the object?

Things found below the surface of the land. For example, what if C buys a freehold in land, and later discovered there are valuable minerals underneath?

Things found above the land. If an aeroplane flies above C’s land without C’s consent, is it trespassing on C’s land?

It used to be said that cujus est solum, ejus este usque ad coelum et ad infernos: whoever owns the land, owns it all the way to Heaven and all the way to Hell. However, this is no longer completely accurate for modern law.

Above the Surface

The cujus est solum maxim has been most abrogated when it comes to rights above the surface of land. Instead of owning the airspace above the land ‘to the heavens’, land owners only own the airspace:

‘to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it…above that height he has no greater rights in the airspace than any other member of the public’: Bernstein of Leigh (Baron) v Skyviews & General Ltd [1977] EWHC QB 1.

This is reinforced by the Civil Aviation Act 1949, s.40, which excludes liability in trespass and nuisance regarding aircraft flying a reasonable height above the land.

However, the approach in Bernstein was distinguished in Anchor Brewhouse Developments v Berkley House [1987] EGLR 173.

Scott J stated that Bernstein only applies to objects flying above the land, and not to structures and objects built on neighbouring land which overhang the claimant’s land. In those cases, the claimant has full and unlimited rights to their airspace even beyond what is necessary for ordinary use and enjoyment of his land.

Below the Surface

By contrast, the cujus est solum maxim applies fully to rights below the surface of land. The owner of the land has full rights to anything below the land, including valuable minerals and oil: Star Energy Weald Basin v Bocardo SA [2010] UKSC 35.

However, for some underground resources such as petroleum, it is possible to acquire a compulsory licence under statute: Petroleum Act 1998. This allows third parties to drill or excavate under the land and remove those resources without the landowner’s consent.

On the Surface

There are different rules for determining the ownership of objects on the surface level of land. This depends on what those objects are and why they are on the land.

Natural Objects

Plants growing on land form part of the land. Wild animals do not, but a landowner has the exclusive right to hunt, take and keep wild animals on the land: Borwick Development Solutions v Clear Water Fisheries [2020] EWCA Civ 578. The land owner can transfer this right to others, for example by granting a profit a prendre.

Things ‘Part’ of the Land

Sometimes things are deliberately placed on the land by a landowner, and a dispute arises as to whether a subsequent purchaser of the land is entitled to them, or whether the first landowner can take them away. This depends on whether the object is a ‘chattel’, a ‘fixture’ or ‘part and parcel of the land’: Elitestone Ltd v Morris [1997] 1 WLR 687.

Things Lost and Found

Sometimes objects may be lost on the land, such that it is no longer possible to find the original owner. The object might belong to the finder, the landowner, or even the State depending on whether or not the Treasure Act 1996 applies.

Things Part of the Land

The court in Elitestone Ltd v Morris [1997] 1 WLR 687 distinguished between three categories of object: chattels, fixtures, and things ‘part and parcel of the land’.

Chattels do not form part of the land, and owned separately from it. This means that if the landowner sells the land to another, they are entitled to take the object with them.

Fixtures and things part and parcel of the land form part of the land. They are automatically owned by the landowner. Unless the sale contract says otherwise, the landowner must leave the object when they sell the land to another.

But what makes an object a fixture, or part and parcel of the land as opposed to a chattel? The court in Elitestone stated that this depends on two criteria:

  • The Degree of Annexation: The more attached to the land the object is, and the more difficult it is to move or remove, the more likely it is to be a fixture or part and parcel of the land. This is particularly true if the object would be damaged if it were removed. However, not all unfixed objects are chattels: the importance of this factor depends on the object in question.
  • The Purpose of Annexation: If the object was placed on or attached to the land with the objective intention that it will form part of the land, it is a fixture or part and parcel of the land. Whether this is the case depends on the nature of the land and the reason the object was put there. This criterion tends to be given the most weight: Berkley v Poulett [1976] EWCA Civ 1.

Stones placed on top of each other (without cement) to form a wall on residential property would be part and parcel of the land. Stone placed on top of each other in a builders yard for storage purposes would be a chattel: Elitestone Ltd v Morris [1997] 1 WLR 687.

A reasonable person would conclude that a building which cannot be removed without destroying it must have been intended to form part of the land, even if it rests on its own weight: Spielplatz Ltd v Pearson [2015] EWCA Civ 804.

A sculpture was a chattel in Tower Hamlets LBC v Bromley LBC [2015] EWCA Civ 1954 because it was an independent decoration which rested on its own weight and could be removed without damage. By contrast, in D’Eyncourt v Gregory (1866) LR 3 Eq 382, the statues formed part of the overall design of the building, making them part of the land.

Lost Objects
Treasure

The first matter to determine when deciding who owns a lost item is whether it constitutes ‘treasure’. Items found prior to 1996 are subject to the common law rules of ‘treasure trove’. Otherwise, s.1 of the Treasure Act 1996 defines ‘treasure’ depending on the age of the object:

Object is at least 300 years old (coins)

A coin is treasure if: a) it is found with at least one other coin (over 300 years old), and 10% of their weight is gold or silver, or b) it is found with at least ten other coins (over 300 years old) (s.1(1)(a)(ii)-(iii)).

Object is at least 300 years old (other objects)

An objects other than a coin is treasure if at least 10% of its weight is comprised of gold or silver (s.1(1)(a)(i)).

Object is at least 200 years old

An object which is at least 200 years old is treasure if the Secretary of State has designated it as such (s.1(1)(b) and s.2(1))

Other

Any other object is treasure if it part of the same find as something else which is treasure or common law treasure trove.

Something is not treasure if it is an ‘unworked natural object’ or ‘minerals as extracted from a natural deposit’ (s.1(2)).

Ownership of treasure belongs first to the original owner’s heirs, but usually they cannot be found. A secondary ownership right vests in the Crown (s.4(1)), which the Crown can disclaim if they wish (s.6(3)). It is a criminal offence to fail to notify the State if one has reasonable grounds to believe they have found treasure (s.8).

If the State decides to put the object in a museum, they have a discretion to pay a reward to the finder, the landowner, or any occupier of the land (s.10).

Lost Objects

If a chattel found on the land is not treasure, the landowner does not automatically gain any right to it: Hannah v Peel [1945] 1 KB 509. Instead, the basic rule is that finder has the best title to the object (subject to the rights of the original owner who lost it).

This is because once a person takes possession of an object, they gain a property right in that object. This is true even if the finder stole the object: Costello v Chief Constable of Derbyshire [2001] EWCA Civ 381. This property right can be defeated by earlier property rights, but can be asserted against later property rights (for example if the item is lost again and found by another).

There are some exceptions to this, however.

Objects found under the soil or attached to the land belong to the landowner, as part of the cujus est solum maxim or because the object is ‘part and parcel’ of the land. So, if an object becomes lost and is buried over time, the landowner gains a property right over it: Elwes v Brigg Gas Co (1886) 33 ChD.

If the landowner can show a ‘manifest intention’ to exercise control over the land and everything in it, they gain a property right in lost objects even if they are unaware of them: Waverly Borough Council v Fletcher [1996] QB 334. This might be the case, for example, if the item is lost inside someone’s home.

There is obiter dicta in Parker v British Airways Board [1982] QB 1004 stating that if the finder was trespassing on the land, the landowner will have a superior right to the finder. However, this has been challenged by some academics, since normally thieves gain a property right in stolen objects.