REAL PROPERTY SUMMER 2005-2006 TRESPASS TO LAND AND FIXTURES LECTURE ON 15 FEBRUARY 2006 Note: Students should read pages 8-17 and 36-53 of Land Law by Peter Butt (4th Edition) and should also find and read the sections and cases referred to in the Subject Guide on pages 8 (Definition of Land) and 20 (Fixtures). These notes are not a substitute for reading the text and considering the cases. Airspace The law governing the rights of the owners of land is very ancient. Butt [206] refers to a contract for land in Norwich in 1285 containing the maxim “cuius est solum eius est usque ad coelum et ad inferos” meaning “the person who owns land owns it from the heavens above to the centre of the earth below”. He also makes reference to the fact that the concept may have originated in Jewish law at least 1,000 years earlier. If airspace continues upwards ad infinitum then what can reasonably constitute an intrusion into this airspace? Older English cases (pre-twentieth century) generally came to a conclusion that a temporary intrusion into airspace did not constitute a trespass unless the object intruding into the airspace eventually came into contact with the land. (Butt [203]) Modern authority favours the proposition that telephone wires crossing a neighbouring property, aeroplanes overflying land, crane jibs overhanging, bullets fired across land (without touching the surface) and advertising signs all constitute a trespass into the airspace regardless of whether that trespass is permanent or transitory (Butt [209]-[210]). In this area it is necessary to look at many of the cases to determine the way in which the law has developed and the sometimes conflicting approach taken by Courts in making decisions. In Kelsen v Imperial Tobacco Co [1957] 2 QB 334 the plaintiff was the lessee of a tobacconist’s shop consisting of a one-storey building. The defendants owned the building adjacent to Kelsen’s premises and for many years had a sign on the wall of their building that encroached some 4 inches into the airspace above Kelsen’s shop. At some point of time this sign was replaced with a new sign that encroached some 8 inches into his airspace. After some differences between the plaintiff and the defendant company, the plaintiff gave notice that the sign must be removed. The defendant company declined and the plaintiff sought an injunction for the removal of the sign. McNair J. gave consideration to many issues including the question of whether the lease to Kelsen included a lease of the airspace above the shop. He concluded that it did and on this basis also concluded that the intrusion of the Page 1 of 12 sign into the airspace constituted a trespass. He directed that a mandatory injunction issue for the removal of the sign. The issue of the height at which an intrusion into airspace continued to constitute a trespass came before the Court in Baron Bernstein of Leigh v Skyviews & General Ltd. [1978] 1 QB 479. In that case the defendants flew over the plaintiff’s land for the purpose of taking aerial photographs that were then offered for sale to the plaintiff. The plaintiff claimed damages for the trespass by the defendant into his airspace for the purpose of taking the photograph. Despite the defendants arguing that the aeroplane had not flown over the Baron’s land, Griffiths J. found “at some time in photographing the house the aircraft flew over the plaintiff’s farmland.” His Honour then considered the law concerning whether the intrusion into the airspace constituted a trespass: “I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height. In Wandsworth Board of Works v. United Telephone Col Ltd., 13 QBD. 904 Bowen L.J. described the maxim, usque ad coelum, as a fanciful phrase, to which I would add that if applied literally it is a fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passes over a suburban garden.” “The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public. “Applying this test to the facts of this case, I find that the defendants’ aircraft did not infringe any rights in the plaintiff’s air space, and thus no trespass was committed. It was on any view of the evidence flying many hundreds of feet above the ground and it is not suggested that by its mere presence in the air space it caused any interference with any use to which the plaintiff put or might wish to put his land. The plaintiff’s complaint is not that the aircraft interfered with the use of his land but that a photograph was taken from it. There is, however, no law against taking a photograph, and the mere taking of a photograph cannot turn an act which is not a trespass into the plaintiff’s air space into one that is a trespass” The cases of Woollerton and Wilson v Richard Costain and Graham v K D Morris and Sons are both cases dealing with intrusions into airspace by crane jibs. In Woollerton and Wilson v Richard Costain [1970] 1 All ER 483 the building contractors had installed a high crane on a site to assist with the building work. From time to time about 50 feet of the crane jib extended over Page 2 of 12 the plaintiff’s land at a height of about 50 feet above the plaintiff’s land. In his judgement, Stamp J set out the facts of the case and said: “It is in my judgement well established that it is no answer to a claim for an injunction to restrain a trespass that the trespass does no harm to the plaintiff. Indeed, the very fact that no harm is done is a reason for rather than against the granting of an injunction; for if there is no damage done the damages recovered in the action will be nominal and if the injunction is refused the result will be no more nor less than a licence to continue the tort of trespass in return for the nominal payment.” His Honour then considered the exercise of his discretion and granted an injunction but postponed its operation. “I am conscious that by so doing I am giving with one hand and taking away with the other. But by so doing I give effect to the process by which I have come to my conclusion that in principle there ought to be an injunction but on the particular facts of this case not until the defendants have had a proper opportunity of finishing the job. If for any reason the job would not be finished in November 1970, application could be made, with what result I know not, to extend the suspension of the order.” In Graham v K D Morris and Sons [1974] Qr R 1 the plaintiff sought an injunction in a case with almost identical facts to Woollerton. W.B.Campbell J referred to Woollerton and said: “The facts in that case correspond very closely to the facts before me. Stamp J. held that neither the absence of any damage caused by the trespass, either present or apprehended, (n)or the principle known as “the balance of convenience” was an answer to the claim for an injunction.” “In all the circumstances I consider that I cannot allow the defendant to continue to commit this unlawful trespass. If I did not grant the injunction I would be condoning a clear breach by the defendant of the plaintiff’s proprietary rights. I consider it should be stopped now and that no special factors exist which would justify my refusing to grant an injunction or to suspend it for any length of time. The time to seek permission and for negotiation was prior to the commencement of the work.” In LJP Investments Pty Ltd v Howard Chia Investments (No 2) (1989) 24 NSWLR 490 a mandatory injunction was sought for the removal of scaffolding extending 1.5 metres into the airspace of the plaintiff. After considering the arguments Hodgson J. granted an injunction. His Honour said in part: “If the defendant’s submission is to the effect that entry into airspace is a trespass only if it occurs at a height and in a manner which actually interferes with the occupier’s actual use of land at the time, then I think it is incorrect. In my view, the rule stated in Bernstein of Leigh (Baron) v Skyviews & General Ltd by Griffiths J was rather that a trespass occurred only if the incursion was at a height which may interfere with the ordinary user of land, or is into airspace which is necessary for the ordinary use Page 3 of 12 and enjoyment of the land and structures upon: see (at 486,488). It was held in that case that there was no trespass by an aeroplane flying many hundreds of feet above the land. On the other hand, in Woollerton and Wilson v Richard Costain and Graham v K D Morris and Sons, the incursions of crane jibs at heights of the order of 50 feet above the plaintiff’s roof were treated as trespasses. I think the relevant test is not whether the incursion actually interferes with the occupier’s actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake.” The second case of LJP Investments Pty Ltd v Howard Chia Investments (No 3) (1989) 24 NSWLR 499 dealt with the issue of compensation for the damage suffered by the plaintiff. Before the terms of the injunction ordered in the previous proceedings it became apparent that the building could be constructed without the need to trespass on LJP’s land. This was contrary to the evidence given in the case. His Honour awarded exemplary damages of such an amount as to bring the total damages to the figure requested by the plaintiff before any trespass occurred. His Honour said: “ ….I think it should be made clear to developers that they cannot expect to do better by an unlawful trespass than by paying the price demanded by an adjoining owner, at least unless the price demanded is clearly unreasonable.” The position was reinforced by the judgement of Bryson J in Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464. This case involved the construction of a multi story building using screens to protect the work and prevent building material falling from the building. The screens moved upward as the building was constructed but encroached into the airspace of the plaintiff’s building. A second encroachment concerned a crane and “weathervaning”. Bryson considered Bernstein, Graham, LJP, and Woollerton (amongst others) and concluded that an injunction was warranted notwithstanding that the need for the screen would be completed some five weeks after the hearing of the case. The defendants argued that it would be an undue hardship to have to stop work while a new method of construction was worked out and put in place. His Honour was unmoved: “I do not see it as a hardship at all. It is all the defendant’s own doing and the result of their using a construction method which would cause encroachment and obviously involved them in the need to get permission, yet they did not obtain permission. Their own evidence shows that by adopting the construction method which they have used they made a saving now quantified at $239,000.00” The cases of Rodrigues v Ufton, Pickering v Rudd, and Clifton v Viscount Bury should be looked at for general principles. The references are in the Guide at page 8. Page 4 of 12 The Tasmanian case of Davies v Bennison (1927) 4 TLR 8 concerned a cat shot and killed by a neighbouring owner while the cat was sitting (minding its own business) on the roof of an adjoining shed. A jury found for the defendant although directed by the judge to find for the plaintiff. The plaintiff applied for a new trial and in this hearing Nicholls C J, after considering a dictum from Lord Ellenborough in Pickering v Rudd and quoting from Lord Blackburn in Kenyon v Hart said: “It seems an absurdity to say that if I fire at another’s animal on his land, hit it, kill it, and so leave the bullet in it, I have committed no trespass, and yet, if I miss the animal and so let the bullet fall into the ground, have committed a trespass. Such distinctions have no place in the science of the Common Law.” “If the hovering aeroplane is perfected the logical outcome of Lord Ellenborough’s dictum would be that a man might hover as long as he pleased at a yard, or foot, or an inch, above his neighbour’s soil, and not be a trespasser, yet if he should touch it for one second he would be.” See the Damage by Aircraft Act 1952 which precludes actions for trespass but imposes strict liability for damage caused by overflying aircraft. Section 2. Below ground level: mineral rights The same general principles apply as espoused in Bernstein. The rights of the owner of the surface extend downwards sufficiently to enable the owner to enjoy the surface and prevent it being undermined. Early grants of land from the Crown reserved mineral rights and rights to mine for coal and other minerals. The extent of the rights reserved needs to be considered by reference to individual titles and the date of the original grant from the Crown. On pages 14-15 of the 4th edition of Land Law, Butt sets out the dates for the different reservations. Some land grants were limited as to depth. No trespass can occur below that depth. There are no English or Australian cases that appear to explore the issues. Encroachment of Buildings The general rule is that anything constructed on the land of someone else becomes the property of that other person. Such a building is regarded as amounting to a gift to the owner of the land. Equity tempers this right by applying the following principles as set out in Ramsden v Dyson (1866) LR 1 HL 129 If a stranger builds on someone else’s land in the mistaken belief that it is that person’s land, and the true owner is aware of the mistake Page 5 of 12 but does nothing to prevent construction then equity will prevent the true owner from asserting title to the land. If a stranger builds on someone else’s land knowing the true position as to ownership then equity will not assist the stranger. The second proposition is now tempered where the stranger has carried out the work in reliance upon some assertion by the true owner that an interest in the land will be acquired. If in the circumstances it would be unconscionable for the owner to assert the owner’s strict legal rights then equity will intervene and the court will try to work out what is the best order or orders to be made in the particular case. The Court may award an irrevocable licence, a long term lease, a licence to occupy the land for a period of time, possession until the amount expended has been repaid, or may order that the building be removed within a reasonable time. Encroaching buildings At common law any part of a building which encroaches onto neighbouring land is the property of the owner of that land. It follows that the owner can occupy the encroachment and prevent the owner of the remainder of the building from occupying it. If an owner of an encroaching building fails to remove the encroachment after a request to do so, then it is necessary to approach the court for a mandatory injunction to have the encroachment removed. In many cases it is possible to deal with the matter under the Encroachment of Buildings Act 1922. This act gives the Land & Environment Court power to hear and determine disputes concerning encroachments by permanent buildings of a substantial nature. Retaining walls, concrete driveways, protruding floor beams, weld mesh fence set in concrete footings have all been held to be "substantial" or "permanent". Paving in a courtyard has not, nor has a pump house for a swimming pool. The Court cannot make orders relating to buildings totally on the wrong land. In Amatek Limited v Googoorewon Pty Limited (1993) 176 CLR 471 the High Court was asked to consider whether the Act applied to a building constructed totally on the wrong land. In its written judgement the Court said: “The encroachment by a building of which the Act is speaking is a horizontal encroachment “beyond the boundary” between the land of the encroaching owner and the land of the adjoining owner. The definition of “encroaching owner” makes it clear that the encroaching building extends beyond the boundary of the encroaching owner’s land……….Thus an “encroachment” under the Act is an encroachment by a building that traverses the “boundary” between the contiguous parcels of land.” Page 6 of 12 The court may order compensation or that the encroachment be removed. Who may apply and the way compensation is calculated is set out in sections 3 and 4. FIXTURES General When a chattel is brought onto land it may retain its character as a chattel or change its character and become a fixture. This becomes relevant in at least 5 situations: - when realty is sold, fixtures pass with the realty without the need for any express mention to be made of them. Chattels do not pass without mention in the contract. The standard form of contract for the sale of land has a list on the front page which is designed to be completed and specifically includes a box for “exclusions”. - a mortgagee is entitled to fixtures in the event of a default, but is not entitled to chattels. - chattels installed or upon a property which belong to a tenant may become fixtures (subject to any right the tenant might have to remove those chattels) - fixtures installed in or on property by a life tenant become part of the reversion - on death, fixtures pass to the beneficiaries entitled to the realty, they are not part of the personal estate of the deceased The general principle can be stated as “quicquid plantatur solo, solo cedit “ – “whatever is attached to the land belongs to the land”. Annexation v Intention The old common rule relied almost exclusively on the degree of annexation in determining whether a chattel retained its character as a chattel or became a fixture. This reliance on annexation has declined and the determination is now primarily based on the intention of the person placing the item. If the item is placed with the intention of better enjoying the land then it is likely to be a fixture. If the item is placed with the intention of better enjoying the item then it is likely to remain a chattel. There are two presumptions: Where the item is fixed to land to any extent (other than simply by its own weight) it is presumed to be a fixture and the burden of proving otherwise is with the owner of the chattel. Page 7 of 12 Where the item is simply resting on the land by its own weight it is presumed not to be a fixture and the burden of proving otherwise is with the landowner. As these are presumptions they may be rebutted by evidence to the contrary. At paragraph [306] Butt sets out many examples of the relevance of intention when determining the status of items that were chattels when brought onto the land. He gives examples of: a New Zealand bush tramway, securely fixed to the ground but only in place for a temporary purpose until logs removed ancestral paintings fixed in purpose designed wall niches (placed there for the enjoyment of the paintings, but not part of the “grand architectural design”) not being considered fixtures. heavy metal grates resting on the ground by their own weight (because they replaced other existing fixed grates) sculptured marble vases marble lions, marble slab garden seats carved wooden figures portrait and tapestry because they were part of an “Elizabethan room” being fixtures although some items rested only by their own weight. Where there is the possibility of chattels forming part of what might be called a “grand architectural design” it is necessary to consider whether such a scheme can be said to exist. The case of D’Eyncourt v Gregory (1866) LR 3 Eq 382 deals with this topic. It is referred t in Butt at [306] and [309]. Nature of Intention The nature of the intention of the person placing the chattel must be determined objectively – it must be “patent for all to see” Modern decisions such as N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1980) ANZ Conv R 300 look at actual intention. In this case a PABX telephone system had been installed in leased premises by the tenant. The system remained the property of the lessor of the equipment (Dunn) which could remove the equipment at the end of the equipment lease. The tenant, Pettit & Sevitt, moved out of the premises before the end of the property lease and Dunn sought to remove the PABX equipment as it was entitled to do under its lease of the equipment. The lessor of the premises, Ericsson, claimed that the PABX had become a fixture and could not be removed. Page 8 of 12 In his judgement, Mahoney J.A. said: “It is , in my opinion, now accepted that a chattel may become part of realty notwithstanding that it is not, in any formal sense, annexed to it but rests on it merely by its own weight:…. Even if a chattel is physically annexed to the realty, it may yet remain, at all times, personalty…” “Whether the question of whether chattels have become part of the realty is a question of fact (see supra) or a conclusion of law, various matters have been seen as of assistance in the final determination of it. The period of time for which the chattel was to be in position, the degree of its annexation to the land, what was to be done with it, and the function to be served by its annexation, are all matters which have been seen to be relevant for this purpose.” In the same case, Glass J.A. said in his judgement: “The statements of principle found in the many decided cases are not easily susceptible of reconciliation. But on certain propositions they are agreed. 1. The ultimate question is whether a chattel has become part of the realty to which it is attached. It is a question of fact which in a divided tribunal is decided by a jury… 2. The question is to be determined having regard to all relevant circumstances which include the purpose of annexation and the mode of annexation…. 3. Although both of these factors are relevant neither is conclusive. For example a chattel which has been securely fixed to the premises may nevertheless not be a fixture… Contrariwise a chattel may become a fixture notwithstanding that the party annexing it may have no such actual intention.” It can be seen from examining the cases referred to in Dunn and other cases that each case must be determined on its own facts. Many of the cases are conflicting. The status of the person bringing the chattel onto the land is also relevant. An owner is much more likely to be seen to be bringing chattels capable of annexation to the land onto the land with the intention that they become fixtures. Those with a limited interest, such as lessees and life tenants, are more likely to be intending that chattels do not become fixtures. In Reid v Smith (1905) 3 CLR 656, the High Court held that a house erected by the lessee but resting on piers only by its own weight was no longer a chattel but had become a fixture. In Standard Portland Cement Co Pty Ltd v Good (1982) 47 ALR 107 the Privy Council determined that a cement mill weighing 100 tons was a chattel and could be removed by the vendor. The contract for sale of the vendor’s land contained a clause allowing the vendor to remove the mill provided such Page 9 of 12 removal took place within 12 months of the date of the contract. For various reasons the mill had not been removed within that time. The Supreme Court of New South Wales found that the mill had become a fixture when the vendor had failed to remove it within the time allowed. The Privy Council allowed an appeal because: on its proper construction the contract excluded the mill from the sale failure by the vendor to remove the mill within 12 months would not mean that ownership passed to the purchaser, but would sound in damages or allow the purchaser to seek an injunction ordering the vendor to remove the mill. A very instructive case is that of Webb v Frank Bevis, Ltd [1940] 1 All ER 247. In Webb a tenant had constructed a large shed of corrugated iron supported by timber posts resting on a concrete slab. The posts were supported by iron straps embedded in the slab but bolted to the posts. The roof and sides were capable of removal in sections. The owner asserted that the slab and superstructure were one unit and must remain. The tenant asserted that the slab must stay as a fixture but that the rest of the superstructure was not a fixture and could be removed. Scott L.J. in delivering the judgement of the Court said: “That the concrete floor was so affixed to the ground as to become part of the soil is obvious. It was completely and permanently attached to the ground, and, secondly, it could not be detached except by being broken up and ceasing to exist as a concrete floor or as the cement and rubble out of which it had been made. Does that fact of itself prevent the superstructure from being a tenant’s fixture? I do not think so.” “The judge held, and I think rightly held, that the superstructure was “to a very large extent” a “temporary” building, by which I understand him to mean that the object and purpose for which the company erected it were its use for such time as they might need it.” The more recent case of Palumberi v Palumberi (1986) NSW ConvR 55-287 deals with a dispute between brothers where an arrangement was entered into for the sale to one brother by the other of an interest in property as tenant in common. The property comprised 2 self contained flats. There was an exchange of letters evidencing the arrangement but nothing in the letters concerning fixtures or chattels. The stove and carpet were held to be fixtures but the other items claimed to be fixtures by the purchaser were found to be chattels. In his judgement Kearney J. quoted from many cases and formed the following view: “It would seem from perusal of these and other authorities in the field that there has been a perceptible decline in the comparative importance of the degree or mode of annexation, with a tendency to greater emphasis being Page 10 of 12 placed upon the purpose or object of annexation, or, putting it another way, the intention with which the item is placed upon land. The shift has involved a greater reliance upon the individual surrounding circumstances of the case in question as distinct from any attempt to seek to apply some simple rule or automatic solution………no standard solution is to be derived from such cases which, upon ultimate analysis, are found to turn upon their individual facts.” While generally once an item becomes a fixture it cannot be removed from the land by anyone other than the owner of the land, the law recognises that there are some circumstances where that might occur. The cases of Leigh v Taylor and Spyer v Phillipson deal with a life tenant and tenant respectively. In Leigh v Taylor (1902) AC 157 at 162 a life tenant of a mansion affixed valuable tapestries to the walls of the drawing room. They were fastened to canvas stretched over strips of wood and nailed to the strips which were nailed to the walls. The tapestries could be removed without any “structural injury”. The life tenant died and her executors and the remaindermen both claimed the tapestries. The House of Lords decided that the tapestries retained their character as chattels as they could only be enjoyed as ornamental tapestries by fixing them in this way. There was “no intention to dedicate these tapestries to the house”. The tapestries “put up with that purpose and attached in that manner, did not pass with the freehold to the remainderman, but formed part of the personal estate of the tenant for life, and were removable by her executor.” In Spyer v Phillipson [1931] 2 Ch 183 a lessee of a flat for 21 years installed antique panelling, ornamental chimney pieces, and fireplaces. No structural changes were made for the panelling but slight alterations were necessary for the chimney pieces and fireplaces. When the lessee died, his executors claimed the right to remove the panelling, chimney pieces and fireplaces as tenant's fixtures. The lessor claimed that they were part of the structure and that their removal would cause damage. The Court of Appeal held that: “in determining whether a particular chattel was a tenant’s or a landlord’s fixture the Court had to consider what were the object and purpose of annexation, and what would happen if the annexed chattel were removed. So long as the chattel could be removed without doing irreparable damage to the demised premises, neither the method of attachment nor the degree of annexation, nor the quantum of damage that would be done either to the chattel itself or to the demised premises by the removal, had any bearing on the right of the tenant to remove it, except in so far as it threw light upon the question of the intention with which the tenant affixed the chattel to the demised premises.” The most likely case is where a tenant fixes items to the property for the purpose of enabling the tenant to use the premises the subject of the lease. The common law allowed tenants to remove trade, ornamental or domestic Page 11 of 12 fixtures from the property. While the lease was in force and the fixture attached to the land, the lessor was said to be the owner of the fixture subject to the tenant’s right of removal. Bain v Brand (1876) 1 App Cas 762. In New Zealand Government Property Corp v H M & S Ltd [1982] QB 1145 a tenant occupied premises under a lease. Although this case involved a dispute about a market rent where rent was determined on the basis that the lease had ended, the tenant had vacated and removed any tenant's fixtures, it was held on appeal that at common law a tenant had a right to remove tenant's fixtures from demised premises so long as he was in possession as a tenant. Dunn L.J. summarised the matter: “If a tenant surrenders his lease and vacates the premises without removing the tenant’s fixtures, then he is held to have abandoned them. But if he surrenders his lease, either expressly or by operation of law, and remains in possession under a new lease, it is a question of construction of the instrument of surrender whether or not he has also given up his right to remove his fixtures. If nothing is said, then the common law rule applies, and he retains his right to remove the fixtures so long as he is in possession as a tenant.” ------------------------------------------- Page 12 of 12