Property Rights – Land
The previous article on the topic of property rights addressed personal property – things like your phone, your car or your couch. This article will be taking a look at the other definition of property, ‘real’ property, which is centred around land. We will also look at some rights related to land.
What is ‘real’ property?
Real property is taken to mean all tangible and intangible elements of land. The tangible elements, such as the land itself, subsoil, airspace or buildings on the land, are called corporeal hereditaments. The intangible elements of the land, called incorporeal hereditaments, are interests which relate to land. This includes such things as easements, which will be discussed further.
As with personal property, it is important to categorise the real property rights in order to protect an individual from actions which undermine those rights.
This is a common topic of property law. Trespass is any physical entry onto land in the possession of someone else, which is both intentional and unauthorised. It can be committed by a person or an object – this means that intentionally throwing a tennis ball over your neighbour’s fence is a trespass. A trespass may be temporary, like a construction crane over a person’s land, or permanent, like a neighbour’s roof hanging over the fence into your property.
A question which arises in the topic of trespass is how far do the owner’s rights over their land extend? In other words, how far up into the airspace is still your property? A case which explores this question is Bernstein v Skyviews (1978). It was found that an airplane flying hundreds of meters over your house will not be a trespass. As such, the owner’s rights to their land extends as far up as is ‘necessary for the ordinary use and enjoyment of the land’. This has since been enshrined in statute in the form of the Liability Act 2002 (NSW).
Adverse possession is a rare yet fascinating facet of property law. If you are the documentary owner of some land, meaning the registered owner, but someone else takes possession over your land in a specific way and for a specific period of time, they can gain rights which displace your rights to that land. In other words, they can gain ownership of your land via adverse possession.
There are two requirements involved in adverse possession. Firstly, the adverse possessor must have factual possession over someone else’s land. It requires an open, peaceful and exclusive occupation which lacks the consent of the true owner. Secondly, the possessor must show an intention to use that land as their own; i.e. an intention to exercise exclusive control.
The documentary owner can, at any time, enter into legal actions to regain their land. However, the crucial point of adverse possession is the time limitation. If, after 12 years, the adverse possessor can prove the possession ran uninterrupted whilst satisfying both elements, the documentary owner’s right to regain their land expires.
Easements have become a popular area of property law due to the rise of subdivision trends in land over recent years. An easement is an intangible interest which, once created through one of the many available avenues, allows a person to use the land of another in a particular way. One of the most common examples is an easement providing a right of way for someone to access their property which is landlocked; i.e. there is no other way to get to that property except by crossing another person’s land.
As with all areas of property law, and law in general, the easement must satisfy its elements in order to be valid. Firstly, there must be a dominant and servient tenement. This simply means that there must be land which is burdened by the easement (servient) and land which benefits from it (dominant). As can be inferred, an easement is also required to accommodate the dominant tenement. The dominant and servient tenement cannot be owned by the same person. Finally, the rights created by the easement must be able to form the subject matter of a grant.