Property Rights & Limits
The chapter looks at the rights that the full owner of the property enjoys. In this context, the full owner means the freehold owner, or a person holding under a long lease at a nominal rent, who is in possession of the property and has not granted leases or other significant rights to others. The person holding under the long lease will usually be in much the same position as the freehold owner, and will commonly have the right to acquire the freehold interest compulsorily for a multiple of 10 to 20 times the annual ground rent if he so chooses. by buying out the light of the land workers rights are merely to receive a small fixed rent.
The freehold or long leasehold owner is effectively entitled to the full economic value of the property. Property is usually an asset and subject to the liquidity of the market, it may be sold for its economic value. Equally the full owner may lease the land for the market value rent. This should represent the income equivalent of the capital value of the land, although this may vary with the terms of the lease or letting and current positions in the sales and rental markets.
The full owner may lease the property to a another for its full market value, He is not then entitled to physical possession of the property. He is instead entitled to the rental value of the property. The tenant is entitled to use and occupy the property subject to compliance with the terms of the lease. It the lease expires by reason of its term being over or by reasoa n of serious breach by the tenant, the property may go back to the full owner / landlord.
The full owner, who has not granted a lease or other third party rights, has the exclusive right to use, possess and occupy the property. This means that he may physically enjoy the property. Person may only be on the property with his explicit or implicit consent. He may exclude all others from the property, it he so chooses.
The property owner may legal action against anyone who directly or indirectly interferes with the land or his enjoyment of the land. He may use reasonable force to exclude trespassers. He may also or alternatively, sue for compensation and /or obtain a court order against anyone trespassing on the land. He may take action to prevent persons depositing goods and materials on land. He may prethe vent growth of trees over the boundary.
The property owner may sue for compensation and /or obtain a court order to prevent a nuisance. Nuisance may include smells, vibrations noise etc from adjoining property which interferes with the reasonable enjoyment of the property by the owner or occupier See our sections on civil liability for nuisance.
Property or any interest or estate in property may be owned by a number of persons at the same time. They are so called co-owners. It is possible to have multiple couple owners of a property. Each co-owner is entitled to possession of the property. He is not entitled to exclude his fellow co-owners.
There are two types of co-owners; joint tenants or tenants in common. In this context, the word “tenant” may be misleading. The word tenant is this context refer to any class of owner. There may be joint tenants or tenants in common for a freehold interest or for the tenants interest under a lease.
Joint tenants own the property collectively. There are certain technical rules rwhich must be satisfied regarding how a joint tenancy is created. The joint tenants are deemed a single unit. None of them has a distinct share as such in the property. They must act collectively if they take legal action. In an economic sense, they hold equally.
A joint tenant can become a tenant in common, by various means. A significant feature of joint ownership is that upon the death of one joint owner, the property passes automatically to the others. It does not go the deceased persons successors under his will or the intestacy rules.
Persons may own an interest in property as tenants in common. This means that they each hold a distinct undivided share in the property. The shares need not be equal. On the death of a tenant in common his the share in the property passes in accordance with his wheel or the intestacy rules. The shares are not to a distinct physical part of the property. Each holds a fractional part in the whole.
No co-owner may exclude his fellow co-owners from the property. Each is entitled to occupy the property. Generally, he will not have to pay a rent to his fellow owners. In some circumstances, such as in the case of business partners, he may have to account to his fellow owners for the free use of the property.
It is possible for co-owners to physically partition land so that each becomes the sole owner of a physical part. Where co-owners cannot agree, it is possible to apply for co-owners to apply to the court for partition of the property or for its sale. The court has a broad discretion as to what course to take. It may require one owner to buy the share of another, if he wishes to avoid a sale. It may refuse a sale.
Co-owners may own in unequal shares . This may arise from the contribution of the purchase price in different proportions. It may arise by agreement of the co-owners. The differing shares will be reflected in the share of rents or sale proceeds to which each is entitled.
It is possible for persons to be legal or equitable joint owners or legal or equitable tenants in common. There may be a single trustee or nominal owner who holds as trustee for a number of persons who are tenants in common. The latter persons are equitable tenants in common. It is possible for legal joint owners to hold property on trust for themselves in particular shares as tenants in common. They will appear on the Land Registry records or deeds as joint tenants, but may in fact be tenants in common as to the equitable shares in the property.
It is an important principle of property law that buildings and anything else affixed to the land it becomes part of the land. The building is owned by the land owner, irrespective of the fact that the person who provided the materials and built it, may be unpaid. Although the building materials may belong to another, that ownership ceases once they become part of the building or are otherwise attached to the land. He cannot retain the title in them.
This principle may cause a windfall where an unpaid contractor has built a house and provided materials. There is no so-called “mechanics lien” under Irish law which would entitle the builder to a lien or security interest for the fixtures and work he has provided.
The law makes a distinction between fixtures and other movable items, including fittings. Movables and fittings only pass on accordance with the law of personal of movable property. remain movable or personal property. In contrast, once something becomes a fixture it passes to the land owner and ownership passes with the land.
A fixture is something that is an which is attached to the land or another fixture (such as a building) so that it would cause significant damage, it is was removed. Something that is an integral part of a building is usually a fixture. Plant such as heating, plumping, electrics, lifts would usually be fixtures Loose parts of the systems would also be fixtures. Keys may be fixtures as they are an integral part of the lock which is itself a fixture.
In order to be a fixture, an movable items must be affixed with the intention that it become an intention. The courts will infer intent from the circumstances. A private intention to retain title is of no avail. If the item is one which is normally a fixture, the intention is likely to be inferred.
There may be a thin line between what constitutes a fixture and what does not. There have been cases some where large machinery has been bolted down, where the courts have decided then to be fixtures on others, where they have not. The inference of intention is an important factor.
Airspace and Subsoil
The general presumption is that the owner of the land owns the sub-soil and the airspace. At one time, it was said that the owner of land owned upwards to the sky and downwards to the centre of the Earth. However, this is no longer the case. An owner is probably entitled to the use of land to a sufficient extent of the subsoil and airspace as is necessary for the reasonable enjoyment of the land.
Sub-soil is owned to the extent necessary to support for buildings and construction of underground services. At levels significantly below this level, the subsoil is likely to vest in the sates. Mines and minerals are owned by the State.
Subject to getting planning permission there is no property law limitation on how high one might build. Similarly , it would probably be possible to take trespass action against infringement at a a height which interfered with the enjoyment of property e.g. by placing a device or balloon or advice over a property. Legislation immunises overflying aircraft from legal action for trespass..
Property rights are protected by the Constitution. It is permissible for property to be compulsorily acquired for public purposes. Compensation of the full value must generally be paid. This s reflected in compulsory acquisition legislation. See our chapters on compulsory purchase.
Public authorities’ powers to compulsory acquire, are subject to detailed procedures, which go some way to give the person prospectively affected, the right to make objections or observations. The compulsory purchase will generally proceed, although account may be taken of the observations and objections.
The property owner has very wide rights within his property. However, he is still subject to the law. The criminal law applies and there is no immunity from the criminal law on private land. A warrant will, however, be usually necessary to search and arrest a person in their residence (irrespective of whether or not he is the owner).
A good deal of legislation has been introduced in the wider community interest which limits what can be done on land. Planning law provides that most building work or changes to the use of land require a grant of planning permission from the planning authority, which is usual the local authority. If no planning permission is obtained, legal enforcement action can be taken against the owner. Works built in breach of planning permission law can be required to be demolished. Building regulations prescribe how building works are undertaken.
There exists a substantial amount of other public health legislation which is designed to protect the public which limits the manner is which property can be used. Legislation places sanctions on owners of land who allow the land, buildings and other structures to become derelict or dangerous. The local authorities can compel work remedial works. They may enter the property to remove the dereliction or danger, in an emergency or if the owner fails to do so.
Under housing, workplace and fire safety legislation, works may be required to meet minimum safety standards. This may require substantial expenditure. Buildings may be closed or their future use may be prohibited or restricted, if the requisite standards are nor complied with.
Emissions from a property which are harmful to the environment are generally prohibited. The local authority or the Environmental Protection Agency have significant enforcement powers. Air borne or water borne pollution may be permitted within limits by a licence. See our guides on environmental law.
Apart from environmental law, the use of property in such a way as to interfere with the reasonable enjoyment of adjoining property can be the subject of an injunction compelling cessation or compensation. See our the chapter on the law of nuisance. See also our local government section and the general powers of local authorities to abate nuisances.
Local authorities may compel connection of property to sewerage and water supplies. This is in the interests of public health. Public authorities can enter land to build or connect pipes, drains, wires and other such apparatus. Compensation may be payable.