EXTENT OF OWNERSHIP AND ENJOYMENT OF LAND (PART 1)

Areej Torla areej@iium.edu.my

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?

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”

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)

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

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).

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

Landowner has the right to sue for any interference.

Trespass is actionable per se –(case: Terra Damansara)

Liability is strict: No need to prove damage Actionable even if made under mistake, or if

he believed the land was unoccupied or unalienated, or believed that the land was his own.

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.

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…

RIGHT TO USE AIRSPACE

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]

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.

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.

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”

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)

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”

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.

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”.

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”.

See also:

Swetland v Curtis Airport

Court: Flying of aircraft above land was not trespass as long as it is of reasonable height.

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

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