A judges role is not to make law but to uphold the laws which are made by parliament. The damage or destruction does not have to be caused by a positive act as an omission will suffice. Case in Focus: R v Morris [1983] 3 WLR 697. Land its definition and the question ;how deep do our property rights extend ? An intellectual property right pertains to any original creation of the human intellect such as artists, library, technical or scientific creation. Section 3(1) of the Theft Act 1968 defines this as: (1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. She concludes, at p 285[43], that any intrusion into land which is not sanctioned by some countervailing property right will be a trespass and that, although the surface owner will not usually wish to or be able to utilise the ground below the surface, he has rights in the land which could be valuable. The Court held that although possession or interest could be taken to arise in favour of anyone in relation to the bags it did not mean that they had been abandoned. 1) [1989] EWCA Civ 2). Accordingly, aggravating factors that will increase the sentence are set out and include things such as targeting a vulnerable victim, or targeting victims out of spite or on racial grounds. It has been said to have no satisfactory rationale (Prudential Assurance Co Ltd v London Residuary Body [1991] per Lord Browne-Wilkinson), and the court has considered relaxing the requirement of the term of years absolute requirement (Ashburn Anstalt v Arnold [1988] EWCA Civ 14). What distinguishes property law from other kinds of law is that property law deals with the relationships between and among members of a society with respect to " things."The things may be tangible, such as land or a factory or a diamond . But it has made it much more difficult to gain title this way , hence that is why although there are over 20,000,000 registered properties in England and Wales, only just over half of the land mass is registered. Given these factors, the court held it must have been within the contemplation of the prospective tenants that the adjoining flats would be let to residential tenants, and that the occupiers would live normally in them (per Lord Hoffmann). It shows the examiner you are aware of the law and will get you easy marks. This requires the attempt or the successful completion of one of these two qualifying offences. He argues that the owners rights should extend only 1000 feet below the surface , with an obvious exception to mineral (and treasure) rights . Given the above, certain landlords will want to avoid the effects of a tenancy. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. Statute does provide for a number of exceptional leases that will automatically be converted into time-bound leases. Effective January 1, 2010, California law (Chapter 173, Statutes of 2009) required the registration of Appraisal Management Companies (AMC) with the Bureau. The only reason for their inclusion was to avert the ordinary legal consequences attendant upon letting the appellants into possession at a monthly rent.. You must show awareness of the definitional elements of the qualifying offences in order to properly apply them in a problem question scenario. Section 4 of the Theft Act 1968 defines property in great depth, stating: Property includes money and all other property, real or personal, including things in action and other intangible property. Lastly, the squatter may have been in adverse possession of land adjacent to their own under the mistaken but reasonable belief it belonged to them. Case in Focus: Davidge v Bennett [1984] Crim LR 297. The court took the physical circumstances of the living space to be a relevant factor: given its very small size, the court said this revealed the air of total unreality surrounding Antonaidess attempt to effectively deny the couple their legal right to a tenancy. For example, permission to be in a shop but not in the areas marked staff only, or permission to be in a restaurant but not the kitchen. John. Lord Templeman said that if the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting they created only a licence. As the coat was waterproof the saliva could be wiped clean off and left no stain. It was sufficient that it was honestly held. In order for this to be satisfied the mens rea for each of the three qualifying offences must be established. The portion of the property occupied by the occupants was very limited: an attic flat. For a fixed or periodic term certain; and. The defendant must be aware that payment is due. He obliged and quickly ran away. This is applied in the same way as for the s.9(1)(a) offence. If this does not occur within the relevant time period, the interest in the property may be void. [37]I think this statement would have been accurate for that period in time but not ours. In accordance with the wording of this element of the mens rea borrowing, even without permission, will not amount to such intention as if the defendant intended to give it back then he clearly does not intend to permanently deprive. There are various express obligations that a landlord will owe to their tenant. Common examples include: Unlawful entry: The extent of the entry is irrelevant. However, there are exceptions to this Victorian view. CALIcon - CALI Conference for Law School Computing. The U.S. Constitution provides Congress with two powers relevant to IP rights. What is reasonable will depend on the facts of each case. These are the classic cases on questions of leases versus licences, and it is important that you remember what each case contributes to this area of the case law. This is a triable either way offence and the defendant is liable upon conviction of a maximum 2 years imprisonment. It was accordingly connected to an electricity supply in order to power the refrigeration system. This lesson addresses inter vivos gifts of property, focusing primarily on personal property (but with a brief discussion of inter vivos gifts of land). Burglary under s.9(1)(a) and burglary under s.(9)(1)(b), and a third offence of aggravated burglary set out under s.10 of the Theft Act 1968. [34]It may appear that the tort of trespass affords a landowner extensive possession rights, but the law has developed to allow a party to gain access to land belonging to another in certain circumstances[35]. As such, given the nature of the remaining terms that were held to be valid, the court determined that the agreement was in fact a tenancy. Yet the importance of the distinction goes beyond the right of exclusive possession: a lease grants the leaseholder a transferable and enforceable right in the property, whereas a licence confers no rights of transfer or enforcement at all over the property (Ashburn Anstalt v Arnold [1988]). B. Grey notes that for legal purposes there must be a clear distinction between the upper and lower stratums of airspace although it is agreed that the maxim cuius est solum has no relevance at all to the Higher of the strata and if the usque as coelum was to be taken seriously[8]it has now been restricted to landowners rights over airspace are clearly restricted to thelower sratum which is basically the immediate superadjacent airspace which the landowner can reasonably enjoy and have a purpose for the use of his land at ground level. Land law impacts upon many facets of our day-to-day living, it determines: the difference between what is property and what is land; who owns property in the land; who may have access to land; your rights to land as a tenant, and; what you can do with your land. BACKGROUND A leasehold is defined in the Law of Property Act 1925 as an estate in the land for a term of 'years absolute' (Law of Property Act 1925, s.1 (1) (b)). This three d-dimensional extent of land can also be important if land borders a roadway. (iii) Recklessness as to whether grievous bodily harm is committed. He concludes that given our modern and scientific knowledge and new advances in subsurface technology , we must now confront the equally foolish notion that the subsurface owner holds title to the center of the earth he goes on to say lacking in either law or logic, the center of the earth approach is merely a curious relic from bygone age[6]it is well established via scholars like Sprankling and Gray as well as case law that the latin maxim is outdated , its non consistent and the need for developments in the law is evidential ,Britain is seen as quite a traditionalist country , the judge to set precedent for the development for departure from the maxim will have to be not only brave but in an essence , radical. appraisals as a Trainee licensee although I have a co-signer who is certified at the appropriate level for the type of property being appraised and in good standing with BREA? Dr Jean Howell, Subterranean Land law[41]acknowledges that it might be argued that the same test as that which GriffithsJ applied[42]should be used for land below the surface. View Local Lawyers What Are Real Covenants? As Justice Douglas once said in the United States Supreme Court[9], the landowner must have exclusive control of the immediate reaches of the enveloping atmosphere since otherwise buildings could not be erected , trees could not be planted , and even fences could not be run . Consider this as the potential for your own analysis here could be the difference between a 2:1 and a 1st. [31]. It is therefore necessary to establish the commission of the offence itself or in relation to the attempt, that the defendant held the mens rea for the offence. A license is a general term for a right to use land on a temporary and personal basis. Case in focus: R v Stones [1989] 1WLR 156. Attempts to, or does indeed, steal or inflict grievous bodily harm. The Land Registration Act 2002 has reduced the required period to 10 years (the old rules still apply if a person had adverse possession for more than 12 years before the act came into force on Oct 13 2003). Landowners can construct cellars that extend into this space below the ground, like many of the pubs have done in Wind Street with the use of trap doors to enable delivery of barrels to the cellar ( not that I would say to a fellow Law student whilst on a night out; hasnt that land owner made marvellous use of their subterean space?). 2. In the dark, she mistakenly thought he was her boyfriend and invited him in whereupon they engaged in sexual intercourse. imitation firearm means anything which has the appearance of being a firearm, whether capable of being discharged or not. Entering part of a building covers situations where there is permission to be in the building, but only certain areas. After exploring four alternative models[40]he comes down in favour of a specified depth such as 1000 feet, but he acknowledges that reasonable minds may differ as to the appropriate extent. The lesson explores the function of the various requirements (donative intent, delivery, and acceptance) for a valid inter vivos gift and the policies implicated by the law of gifts. 554 as these both discuss the two-stage test. Telephone: (714) 533-3450 Fax: (714) 533-8608 Whether or not a term of years is created will depend upon whether the landlord had an interest out of which he could grant it (per Lord Hoffmann). 1:08. There is therefore no requirement that a particular life is in fact endangered a general risk is sufficient. The defendant had been held overnight in police custody. Section 9(4) of the Theft Act 1968 does provide that an inhabited vehicles or vessels will be classed as a building even where they are not inhabited at the time of the offence. The defendant contended that he had absolutely no intention to use the weapon in the course of the burglary and merely carried it out as a habit of protection as he knew the certain people were after him that he may need to defend himself from. This covers situations such as putting it up as collateral in a bet or taking it in to a pawnbrokers. Goods and services that are illegal are excluded in s.3(3) of the act as qualifying matters. Accordingly, he was charged with aggravated burglary. Notice requirements are more stringent, a tenant will have the right to exclude the landlord in most circumstances, and the landlord is thus far less able to oust the occupant under a tenancy. Seeing this, he climbed back down the ladder and removed all of this clothes, bar his socks and climbed back up. Accordingly, there was no destruction or damage to the property so no offence. Therefore, some landlords have sought to include certain terms that erode the legal status of the tenant. There are some quirks in the law regarding what is and is not property and accordingly the remainder of s.4 provides further explanation to cover specific examples. Although the courts are certainly concerned with preventing the exploitation by dishonest landlords of vulnerable tenants by the use of such language as licence agreement (see for example Bankway Properties Ltd v Pensfold-Dunsford [2001] 1 WLR 1369), sometimes the label can actually be a useful pointer. Arden LJ observed in the Court of Appeal that it would be a strong thing for the law to disregard totally the parties choice of wording and to do so would be inconsistent with the general principle of freedom of contract (National Car Parks Ltd v Trinity Development Co (Banbury) Ltd [2001] EWCA Civ 1686). Knowing or being reckless as to trespassing. To begin , like the start of any law assignment , we will start with defining land. View our service portfolio Write for Us (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; In simple terms, aggravated criminal damage occurs where the offence of criminal damage set out above has been completed, but there is an additional element present in that the destruction or damage results in an endangerment of life. The agreement included a term amounting to a waiver by the occupant of all status and rights of a tenancy. He was unsuccessfully charged under s.9(1)(a) on the pretence that in reaching over the counter he had entered part of a building with intent to steal. It states that items of 2 to 9 coins which are 300 years old and at last ten percent precious metal will be regarded as Treasure. If we consider the recent case of Stadium Capital Holdings ( no2) ltd v St Marylebone Property Company PLC (2009)[36]it should be noted that , the court upheld the principle that a freehold owner of land owns both the airspace above the ground and the subsoil and also that it is not possible to aquire title to land by adverse possession if the land is occupied with consent. Case in Focus: B & S v Leathley [1979] Crim LR 314. The law on Treasure is determined within the Treasure Act 1996. Firstly a good start would be asking what is adverse possession and what does it entail? At the time rape was a qualifying offence under s.9(1)(a) and he could not be charged with the offence of rape itself as she had consented to the sexual intercourse. The Criminal Damage Act 1971 sets out three offences of criminal damage: S.1(1) Criminal Damage Act 1971 provides: A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. (1) A person appropriating property without intended to permanently deprive the other of it will be treated as having such intention if he treats the property as his own to dispose of. The period can be for any period of years: from one year to one million years (Law of Property Act 1925, s.205(1)(xxvii). Eveleigh LJ held that to allow this appeal would negate any common sense and go against the natural and ordinary meaning of the words. This leaves a lot of uncertainty in convictions as there is no set rule on what any given jury will decide. (b) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of a handler of the stolen goods or any part of them as being the proceeds of any disposal or realisation of the whole or part of the stolen goods handled by him or of goods so representing them. Whether it is freehold property or a leasehold property, we need to know our rights, our boundaries and the regulations and laws that govern us. 479 that the higher stratum of airspace is not part of owners property although in certain circumstances like the case of Woolerton and Wilson ltd v Richard Costain ltd (1970) 1 W.L.R. Awards Listing. Such a form of wording for the duration of a tenancy, according to the court, can never be valid. Accordingly, the case law has adopted a flexible approach whereby in R v Hale [1978] 68 Cr App R 415 appropriation was held to be a continuing act and that it is a matter for the jury to decide whether or not it has been completed. This extends even to situations where the owner gifts the property to the defendant, as was confirmed in R v Hinks [2000] UKHL 53. The Crown is also entitled to oil, petroleum , coal and natural gas by statutory right , this can be seen in The Coal Industry Act 1994 and the Petroleum Act 1998. He was charged with robbery in relation to the sum acquired but the charge was not upheld as the defendant believed he was entitled to that 5 and thus was not dishonest as to its appropriation. There is no need to prove that the intended offence was actually committed as the intention alone is sufficient. The place occupied by him imposed several requirements, the totality of which were irreconcilable with a notion of exclusive possession on the part of the occupier. Section 6 of the Theft Act 1968 provides two caveats to this. As per R v Hall [1973] 1 QB 496 the defendant himself must possess the knowledge or actual belief that the goods are stolen. Case in focus: Westminster City Council v Clarke [1992] 2 AC 288, Clarke (C) was the occupant of a room at a hostel, run by Westminster City Council, intended for homeless persons. Recording System and Title Assurance. Whether or not the defendant will be deemed to have entered the building is a question of fact the jury to decide. The defendant was owed just over 5 by a friend. As per the regulations of the hostel, no occupant was entitled to any particular room. This is the Theft Act of 1978 which was enacted 10 years after the 1968 Act discussed thus far. The agreement included terms to the effect that the owner could also share occupation with the occupants, and could introduce further occupants at any time. If they stumble into the wrong house drunk for example, this is reckless trespassing. Therefore i can conclude from this that there should not be any doubt that it is theoretically possible to be in possession of airspace because if real property is capable of ownership it is surely capable of being adversely possessed , subject to the test for actual possession which is adverse to the paper owner and the requisite animus possidendi being met.Subterranean space and airspace can be owned as they are part of the 3 dimensional take on land; there is the surface of the land, the ground beneath the surface of the land and of course the airspace therefore they can be adversely possessed. Unlike an action for nuisance, trespass to land is actionable without proof of damage. At trial, the father stated in evidence that his son had his permission to be in the house, however the defendants had exceeded that permission by stealing and were thus trespassers. For extra marks you could provide some critique of the test by discussing the issues with a standard of a ordinary honest person as this is very much a subjective concept and most people have different ideas of what is honest. Published: 16th Jul 2019. Practice applying this test and make sure you understand it. He states that no case holding; or statute resolves the question;and the center of the earth theory of subsurface rights is mere hyperbole[5] . However a good starting point is the partial definition of land in the Law of Property Act 1925 (LPA 1925 ) S.205 (1) (ix) ; Land includes any of 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[1]. Case law provides further specific definitions of what is or is not property: Make sure that you memorise the case law above as you will be expected to apply it if one of the things discussed has been the subject of a ruling. Immediately before or at the time of stealing. With the intention to permanently deprive. LRB sought to be able to argue that the giving of half a years notice would be sufficient in the former case. Lord Hoffmann said the creation of a lease does not in itself give rise to a right of an estate in the form of a term of years. Education law encompasses the law relating to students, student discipline and the First Amendment rights of students. Case in Focus: R v Jones & Smith [1976] 1 WLR 672. Having taken the items, they realised that a woman was at the house so they tied her up to ensure a safe get away.
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