Ll1 slides extent of ownership and enjoyment of land part 1

1. Areej Torla
areej@iium.edu.my
EXTENT OF OWNERSHIP AND
ENJOYMENT OF LAND
(PART 1)

2. Introduction
 Land is alienated to you…
• The land becomes alienated land
• You become the registered proprietor
As the registered proprietor of the land, you have the right to
use and enjoy the land.
But to what extent?

3. Common Law :
 “The owner of a land is the owner of
everything up to the sky and down to the
centre of the earth”
 -Corbett v Hill
 Latin maxim:
 “cujus est solum ejus est usque ad coelum et
ad inferos”

4. Natural rights of landowner under
common law:
1. Right to airspace
2. Right to underground land
3. Right to support
(Other types of rights include subsidiary rights, acquired rights and
imposed rights –academic discussion)

5. Rights under the NLC
 All of the rights under common law are




incorporated in the National Land Code.
Section 44 (1):
(a) “the column of airspace above the
surface of the land”, and
“the land below that surface…”
(b) the right to the support of the land

6.  These are natural rights of a land owner, as
opposed to acquired or imposed rights (such as
easement or LA right of way)
 Note: The NLC added another right i.e. the
right to access in para (c).

7. What happens when someone
interferes with these rights?
 Land owner may sue for trespass
 What is trespass?
 “…an unlawful entry by one person on, or an
unlawful interference by one person with, land
in the possession of another”
 McGilligan J in Liew Yu Fatt v Teck Guan
[1966] 1 MLJ 87

8. To what extent can the land owner
enjoy the rights?
 Rights are EXCLUSIVE but NOT
ABSOLUTE.
 Why?
 Because the extent of the rights and enjoyment
are determined by the law.

9. Section 44 (1)
 Subject to the provisions of this Act and of any
other written law…
 (a) the exclusive use and enjoyment…of the
column of airspace above the surface of the
land, and…the land below that surface, as is
reasonably necessary to the lawful use and
enjoyment of the land;
 (b) the right to the support of the land in its
natural state by any adjacent land…

10. RIGHT TO USE AIRSPACE

11. Cases on right to airspace
 Cases that illustrate the right to use and enjoy
airspace
 The right to sue for trespass for interference of
this right
 Kelsen v Imperial Tobacco – advertising
signboard above plaintiff’s shop. Court: Trespass.
 Other cases:
 Lemon v Webb
 Woollerton & Wilson v Richard Constain [1970]

12. Karuppanan v Balakrishnan
(protrusions from building)
 A four storey hotel stood on Lot 26.
 Previous owner of Lot 26 obtained planning
permission to build windows which protrude
into adjacent Lot 25. There was an
undertaking to remove the windows if later
any buildings were built on Lot 25.
 Later, owner of Lot 25 wanted to build a hotel,
asked new owner of Lot 26 to remove the
windows.
 He failed to do so.

13.  Federal Court:
 The law has clearly spelt out the right of an
individual over his land – he is given the
EXCLUSIVE use of airspace above his land.
 The appellant (owner of Lot 26) had no right
to encroach into the airspace of Lot 25.

14. Restrictions: Section 44 (1)(a)
 “Subject to the provisions of this Act”
 “any other written law”
e.g. Civil Aviation Act 1969
 “exclusive use and enjoyment of “
 “so much of the column of airspace above the
surface of the land”
 “as is reasonably necessary”

15. Civil Aviation Act 1969
 Section 19 (1)
 “No action shall lie in respect of trespass or in
respect of nuisance, by reason only of the
flight of aircraft over any property at a height
above the ground, which, having regard to
wind, weather, and all the circumstances of the
case, is reasonable…”
 (Note: The Civil Aviation Act 1969 is in pari materia with
the UK Civil Aviation Act 1949)

16. Lacroix v The Queen [1954] DLR
470
 An action for trespass against the Crown was
brought for flying an aircraft in the airspace
above the land.
 Court: Action was dismissed
 Fournier J:
 “…the owner of the land has a limited right in
the airspace above his property; it is limited by
what he can possess or occupy for the use and
enjoyment of his land”

17. Bernstein of Leigh (Baron) v
Skyview & General [1978]
 D flew over P’s land to take an aerial
photograph of P’s house.
 P: By entering the airspace above his property
in order to take the photograph, the D’s were
guilty of trespass.
 Court: Not trespass. Referred to UK Civil
Aviation Act.
 No interference caused to property.

18.  Court tried to balance the interest of the
general public and private owner.
 Griffiths J:
 “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 has to offer in the use of
airspace”.

19. How to balance
 “This balance is in my judgment best
struck…by restricting the rights of an owner
in the airspace 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 airspace than any other
member of the public”.

20.  See also:
Swetland v Curtis Airport
Court: Flying of aircraft above land was not
trespass as long as it is of reasonable height.

21. However…
 May still sue for pollution which interferes
with the owner’s use and enjoyment of the
airspace above his land. – (in Bernstein of
Leigh case)
 May also sue if the plane caused material
damage/loss – Section 19(1) Civil Aviation
Act 1969.
 recoverable from the owner of the aircraft
 without proof of negligence or intention

22. Can we enjoy airspace above State
land or reserved land?
 Can apply for permit to use airspace above
State land / reserved land
 S 75 A, S 75 B
 SA may approve permit for a maximum of 21
years