Defining your ‘land’
What, exactly, is your land? The legal definition of land is wider than what is typically understood as land. It is more than just the actual earth beneath our feet within what we know to be the physical boundaries.
What constitutes your land in law, and therefore your property and land ownership, goes far beyond merely your house and garden and any outbuildings. It can include, for instance, running streams and overhanging trees branches.
Why is this important?
Sometimes it is important to understand the extent of your land because of things like potential boundary disputes. Land law is concerned with the ownership of land, and the rights, interests and obligations in, or over land; as well as the process by which ownership and those rights and obligations are created and transferred to others.
What is ‘land’ in law?
The statutory definition of land under section 205(1)(ix) of the Law of Property Act 1925 includes “land of any tenure, and mines and minerals … buildings or parts of buildings and other corporeal hereditaments; also … incorporeal hereditaments and an easement right privilege or benefit in over or derived from land”.
In plain English, ‘land’ means physical property (such as the soil and buildings which stand on it), as well as property which is intangible. This includes easements, ie. rights of way over someone else’s land as well as airspace above the land.
“Corporeal and incorporeal hereditaments” means ‘realty’ or ‘real property’ and is distinguishable from ‘personality’, ie. personal or movable property.
Corporeal hereditaments: these include land, buildings, minerals, trees, flowers, wild animals and all other things which are part of or affixed to land – in other words, the physical matter over which ownership is exercised.
Incorporeal hereditaments: these are not things but rights. Examples include easements, profits and rentcharges.
You also own, and have rights in the airspace above your property; however, these rights are limited. There are two types of airspace – the lower and upper stratums.
The lower stratum
This is the airspace immediately above/around the land. Interference with this air space would affect the landowner’s reasonable enjoyment of the land and the structures upon it. You can prevent people from interfering with or intruding on this airspace. For instance, projecting eaves or advertising signs, and tower cranes being used for construction work on neighbouring land but which swing across your airspace.
The higher stratum
This is the airspace which exists above the height which is reasonably acceptable and necessary for the ordinary use and enjoyment of the land by its owner – around 500 to 1000 feet above roof space level (Section 76 Civil Aviation Act 1982). Landowners have no greater rights to this airspace than any other member of the public.
Trees, plants and flowers
A person’s land includes any trees, shrubs, hedges, plants and flowers, whether planted by the owner(s) themselves or having grown wild on the land.
Wild animals are not subject to absolute ownership. The owner of the land on which there are wild animals only has a ‘qualified property’ in them. This entitles the landowner to hunt, catch or kill the wild animals on their property. Once the wild animals are caught and killed, they will then become the property of the owner.
In English law, water which passes through someone’s land or flows through the land in an undefined channel is incapable of being owned by someone. Where the water runs through a known channel, the owner of the land and channel in which the water has flown has certain rights. For example, they will have the rights to the fish in that water, the rights to the flow of water through the owner’s land that has been unaltered in volume or quantity. These rights are still subject to the reasonable use by the owner of the water flow from up stream.
In most cases, a landowner cannot extract water without a granted license from the water authority. The exception to this rule is where the water is taken for use on a holding comprising the upper stream land and any other land held with it, and where the use is for either the domestic purpose of the occupier’s household, or for agricultural purposes other than spray irrigation.
Mines and minerals
Under the common law, all mines and minerals which lie beneath the soil of the land owned by the landowner belongs wholly to the landowner. There are a few exceptions to this rule; for instance, under section 9 of the Coal Industry Act 1994, coal belongs to the Coal Authority.
All the rights in petroleum, including mineral oil and natural gas found under or on a landowner’s property, are property of the Crown under section 2 of the Petroleum Act 1998. The Crown is also entitled to all gold and silver found in gold and silver mines on or beneath anyone’s property.