Law of Land & Property – Part 1 - What is Land?

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water

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Land is something that has been occupied, bought. sold, fought over and disputed throughout the course of history in all parts of the World.  Even today land disputes are commonplace, some of which have led to war between the disputing parties where many lives are lost during these conflicts.  Fortunately, not all land disputes lead to war and in fact in my professional career I have dealt with boundary disputes where the disputing parties are arguing over what most people would consider as insignificant pieces of land.  For example where someone has erected a fence and the line or position has been disputed by a neighbour.  In these cases the amount of land being disputed is usually very small.

If we were to carry out a survey and asked the question ‘what is land?’, the vast majority of responses would undoubtedly refer to a two dimensional area that they identify as standing on or where buildings or structures are erected on or possible ground, soil or earth that is not covered by water.  Think of an image of the World which shows the mass of the continents and countries, surrounded by seas and oceans and you will see the perception of what most people consider as land.  Whilst this perception does in fact demonstrate some land, we will see that the legal definition of land in the UK is far wider.  The Law of Property Act 1925, s205(1)(ix), provides a definition of land (see below) which at first glance seems confusing, complicated and difficult to interpret.  This is because it uses some language and terminology that has evolved over many hundreds of years and is not commonly used today; 

“Land” includes land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; also a manor, an advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege, or benefit in, over, or derived from land; and “mines and minerals” include any strata or seam of minerals or substances in or under any land, and powers of working and getting the same; and “manor” includes a lordship, and reputed manor or lordship; and “hereditament” means any real property which on an intestacy occurring before the commencement of this Act might have devolved upon an heir;

It is worth however persevering with this definition in order to understand the scope and context of what land actually is.  Firstly, the definition states that land ‘includes…’ This suggests that the definition provided, as confusing as it is, is only in fact a partial definition and has the potential to include other things. Also, ‘land of any tenure, and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way)’, suggests that land is more than just a two dimensional flat area and in fact is three dimensional, including not only the surface of the land, but also the ground beneath (subterranean space) and the airspace above.  The wider definition of land is sometimes expressed in the Latin term ‘cuius est solum eius est usque ad coelum et ad inferos’ which translated means ‘he who owns the land owns everything reaching up to the very heavens and down to the depths of the earth’. Although it is correct that land includes airspace and subterranean space, we will see that these rights are not unlimited.

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Subterranean Land – If for example a landowner wants to add a basement to their property then they are free  to excavate below the ground to allow for its construction.  This is something that may be considered when land availability is restricted to add space and value to a property (subject to obtaining statutory permissions such as Planning Permission and Building Regulations Approval and other permissions where appropriate). Section 205(1)(ix) of the Law of Property Act states, ‘mines and minerals form part of the land’ – however certain ‘minerals’ are restricted from belonging to the land owner by statute. Gold or silver automatically belong to the ‘Crown’, which is the case across the whole of the UK.  Also, the Crown is entitled to oil, petroleum, coal, and natural gas by virtue of the Coal Industry Act 1994 and the Petroleum Act 1998.  It is therefore clear that land includes subterranean land however it has been shown that rights are sometimes limited.  The discovery of ‘treasure’ is also covered by statute and this is something I will discuss in a future article.

Airspace – By virtue of the Law of Property Act 1925 a landowner owns the airspace above their land, however as with subterranean land these rights are sometimes restricted.  If a landowner actually owned the airspace ‘up to the very heavens’, then effectively they would be able to sue in trespass every time an aeroplane flew over ‘their land’, which would be ridiculous!  However section 76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property ‘at a height above the ground which is reasonable’. The question of reasonableness is a case in point in every action and the courts will refer to previous case law to establish precedent.

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The consideration of airspace is far wider that the impact of aeroplanes passing over ‘land’, and in fact consideration must be given at a much lower level.  Tower cranes are a relevant example from a built environment context which have the potential to trespass onto land of different owners unless permission and/or an oversailing licence have been obtained.  Other examples include Kelson v Imperial Tobacco Co (1957), where a defendant committed trespass by allowing an advertising board to project eight inches into the Claimant’s property at ground level and another above ground level. John Trenberth v National Westminster Bank (1979), where scaffolding erected on a neighbours land constituted trespass and Laiquat v Majid (2005), where an extractor fan at about 4.5 m above ground level, protruded 750mm into the claimant’s garden.

The legal definition of land is clearly wide and in a future article I will explore some of the ‘older terminology’ that is used in section 205(1) (ix) of the Law of Property Act 1925, in order to consider land in its wider context.  This will include an explanation of the terms ‘corporeal and incorporeal hereditaments’, ‘manorial rights’ and ‘advowsen’, and consider what the law says about ‘fixtures’ and ‘chattels’

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Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Inspecting Roof Spaces – Part 1 - A 'Rafter' information available

Anyone with an interest in property can learn a great deal from what they find in a roof space as this is one of those places where most people chose to ignore, use is generally limited to storage or access once a year to collect the Christmas tree and then put it back again afterwards!

Source: http://www.loft-conversion-uk.com/

One of the great things about of being a Building Surveyor, is that we get to crawl around and inspect numerous parts of a building that many others would often not dare to venture.  Basements, floor voids, manholes are good examples, however a common place that will tells us a great deal about a building is the roof space (or attic depending on which part of the World you are from).  It is true that some people choose to utilize the roof space to maximize the habitable space as well maximizing the potential of their property and decide to refurbish the area, covering all of the exposed details in the process.  However when we access a roof void which has not been adapted or refurbished we enter a ‘mine' of information because it often allows us to see a building in its barest form.  Anyone with an interest in a property can learn a great deal from what they find in a roof space as this is one of those places where most people chose to ignore, use is generally limited to storage or access once a year to collect the Christmas tree and then put it back again afterwards!

There are a number of different roof types that can be selected depending on design criteria, aesthetics, location and ultimately costs, however for the purposes of this article I will refer to a traditional timber pitched roof, typically found on domestic dwellings in the United Kingdom, United States and other parts of the World.  Certain parts of the World that do not experience excessive rainfall may favour a flat roof, however where there is regular rain and snow a pitched roof will allow more efficient rainwater run-off, as long as the roof is constructed and maintained to a good standard. 

Pitched roofs can either be ‘cut and constructed’ on site or alternatively trusses can be manufactured off site, delivered and installed as a complete component.  Either way both choices ensure that a large amount of timber is installed and concealed with the roof void when a building is completed.  All of this timber has the potential to deteriorate/decay for a whole host of reasons and must be inspected on a regular basis to monitor its condition.  Although inspection of the roof timbers is important, the Inspection of a roof space includes much more than just this. The remaining part of this article will provide some examples of what a Surveyor will look for when inspecting timbers in a roof space and next week in Part 2 I will discuss other things that a Surveyor will consider.

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Roof timbers – There are many different components of a timber cut roof, for which each has its own purpose and function.  A Surveyor will inspect all of the roof timbers carefully looking for signs of damage, deflection, dampness and water presence or possibly decay (wet rot or dry rot), or even woodworm.  Clearly there is a great deal that can affect timber and with it, its ability to maintain the function it was designed for.  The Surveyor will inspect the underside of the roof surface for any indication of water ingress, condensation or possible signs of daylight. This should identify if there are any missing or displaced tiles and where the sarking felt is split or missing. 

One of the primary functions of a roof is to keep the internal environment dry and it is essential that water is kept away from the timber.  In the event that water does come into contact with timber then an environment for wet rot or possibly dry rot may be created if left undetected.  Wet rot requires timber with a very high moisture content (typically 50% to 60%) in order to thrive, so any timber effected by wet rot in a roof void would need to be exposed to moisture over a long period of time. Dry rot requires a lower moisture content than wet rot (typically 25% to 30%), but also prefers much more humid temperature.  In both cases, poor ventilation is also usually a factor. You can read my previous article on dry rot by using the following (Link).

Source: http://www.omegapestcontrol.co.uk/

When inspecting for woodworm the Surveyor will look closely at the timber for ‘flight holes’ these are identifiable as little pin holes. Damage occurs to timber as a result of the larva boring through the wood with the eventual appearance of the adult insect. Different insects have a range of life spans, different flight hole sizes and are active at different times of the year.  In order to try to establish whether there is evidence of recent activity the Surveyor will look for small piles of dust (known as frass) on surfaces adjacent to the flight holes.  The Surveyor will also inspect the timber with a bradawl (similar to a blunt edge screwdriver), to establish the extent and depth of any woodworm attack, by ‘prodding’ the timber at various locations. For completeness woodworm is defined Timberwise (online) as; ‘Woodworm is a generic term that is used to commonly describe the larvae stage of all wood boring beetles. The most common beetle in the UK is known as the Common Furniture Beetle, however there are various other beetles which can make a nuisance of themselves. Other types include Powder Post Beetle, Wood Boring Weevil, Death Watch Beetle and House Longhorn Beetle’ 

Before inspecting a roof space it first worth expressing a note of caution.  Firstly, many roof spaces are accessible with a ladder only and will not have any lighting, so a torch will be required. Also, before entering a roof space always make sure that the environment is safe for you to do so.  Fragile materials, dust, noxious fumes, vermin and live services are some examples of the types of hazards that may be encountered, so if you have any doubts at all about your own health & safety then you should not enter a roof space.  In any event it would always be appropriate to instruct a professional such as a Chartered Building Surveyor to carry out the inspection for you, who will provide you with a comprehensive report, highlighting all issues within the roof void. 

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Listed Buildings – Why should we protect our past?

We have a wonderfully diverse range of buildings in the UK and an equally diverse built environment which has responded to many years of change, development and progress. We clearly need to embrace change however our unique heritage in the UK would be quickly lost if all of our important and historic buildings were to be demolished and replaced with new modern buildings

Source: http://www.geograph.org.uk/

In 1709 Jonathon Swift, an Irish Cleric, Writer, Poet and Politician once commented; ‘nothing in the World is constant, but change’. In this fast moving World this is particularly true of the built environment which continues to find ways of re-inventing itself to keep pace with technology, innovation, population growth and to respond to issues such as depleting resources such as fossil fuels as well as global warming. 

We have a wonderfully diverse range of buildings in the UK and an equally diverse built environment which has responded to many years of change, development and progress. We clearly need to embrace change however our unique heritage in the UK would be quickly lost if all of our important and historic buildings were to be demolished and replaced with new modern buildings.  It is for this reason that selected buildings in the UK are given statutory protection, which makes it a criminal offence to alter, develop or demolish, depending on the protected status of the building (discussed below), without permission.  You will often hear protected buildings referred to as ‘listed buildings’. 

Listed buildings were first introduced during World War II as a means of deciding which buildings should be rebuilt if they were damaged by bombing. Not long after World War II had ended the introduction of the Town and Country Planning Act 1947 resulted in the compilation of the first list of buildings of special historical or architectural importance. Since then more and more buildings, monuments, site, landscapes and other miscellaneous items have been added to the list in order to preserve our heritage. Currently, listed buildings are designated by the Secretary of State for Culture, Communications and Creative Industries, acting on advice provided by English Heritage.  English Heritage will assess a building’s suitability for protected status and will then make a recommendation to the Secretary of State for Culture, Communications and Creative Industries, who can then decide to either accept or reject the recommendation.

If a building is designated for statutory protection (Listing), then it will be allocated into one of the following categories:

Categories of listed buildings (Source: English Heritage)

-   Grade I buildings are of exceptional interest, sometimes considered to be internationally important; only 2.5% of listed buildings are Grade I

-   Grade II* buildings are particularly important buildings of more than special interest; 5.5% of listed buildings are Grade II*

-   Grade II buildings are nationally important and of special interest; 92% of all listed buildings are in this class and it is the most likely grade of listing for a home owner.

The selection process for protected status is much wider than you would imagine.  When I ask my students ‘what is a listed building?’, the usual first reaction is an ‘old historic building’ where they usually provide examples such as Tudor timber framed buildings with thatched roofs or medieval castles.  Whereas, these examples given are not bad ones, the scope and selection of listed buildings is much wider than age and appearance.  The older a building is and its rarity will be a strong influencing factor in respect of whether it will receive protected status in addition to its appearance, both in terms of its architectural merit and whether the building is part of a collection of similar buildings.  Architectural merit will not always relate to ‘older’ buildings as there are examples of many more ‘modern’ buildings that have been listed as a result of their unique structure and form.  

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A good example is the signal box at Birmingham New Street Station (see image).  Many people are surprised to when they find out that the signal box is listed and therefore protected, as it does not follow the conventional perception of what people think a listed building should be.  An article in the Birmingham Post on-line (Link) describes the unique features of the signal box; ‘Designed by Bicknell & Hamilton and W.R. Healey and completed in 1965, the unapologetically bunker-like structure is an honest expression of its utilitarian function. Standing five storeys high above track level, the building gives no clue of the hive of activity that exists within its four walls. The technology inside is of the same era as the exterior façade and was revolutionary for its time. The Relay Room sits just above street level and houses enormous banks of algorithmic electronic relays, known as Wespacs, which are programmed to calculate legal routes for the trains to take.’

A building may be also listed because it represents a particular historical type.  A good example of this is the prefabricated houses that were erected in the 1940’s as a means of providing housing quickly for those affected by bombing during the war.  I have previously written an article on 1940’s prefabs which you may find of interest (Link).  These houses were only designed to solve a short term problem, however as the majority have now been demolished the ones that remain provide a permanent insight (because they are now listed) into a unique form of simplistic construction, one that I have to admit I find fascinating.  If we did not have the ability to protect these types of buildings then it is likely that they could have all disappeared without a trace, which would have been a real shame.  Occasionally English Heritage will also select a building because the building has played a part in the life of a famous person, or as the scene of an important event. 

In order to ensure that our heritage does not get lost in this modern World it is fundamentally important that we provide a level of protection that ensures that future generations can appreciate the built environment of their predecessors. Statutory protection and listed status allows this protection and whilst many may not approve of every building, structure or monument that is given this protection, it's importance cannot be understated.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.