Tuesday, 22 January 2013

Possession as a Root of Title

Possession as a Root of Title

Title can be defined as a legally accepted right to assert you interest in a property. In English law, the origin of title is usually drawn from possession as English law is a relative adversarial system where rights are balanced against one another as opposed to their only existing one sole owner as we see in civil jurisdictions. 

Adverse Possession 

  • This is the notion that one can acquire land by possessing it without the permission of the ‘paper owner’. 
  • Adverse possession arises out of the the Statute of Limitation. 
  • The Statute of Limitation states that there are time limits on when legal claims can be made e.g. if I punch you, you only have three years to bring a claim or it will no longer count. Similarly, the limitation period of when you can bring a claim to land is 12 years. So if someone possesses your property for 12 years and you don’t bring a claim for it, the property is is transferred to the squatters.
  • This is very closely linked with the Lockean argument that if one mixes their labour with the resource then the creation must become theirs. So if you possess a land for 12 years, you mix your labour with the making of t hat place, it becomes possessed then it is only just that it becomes yours. 
  • This is possession is the root of title. 
  • An extension of this can be found with chattels, if you possess them then you are the owner. There are two great cases which demonstrate this: 

Parker v British Airways Board 1982
An air passenger found a gold bracelet in the international executive lounge of an airport. The lounge was leased to the defendants. The plaintiff handed the gold bracelet specifically stating that should the owner not turn up then he should be returned the bracelet. The defendants instead sold the bracelet and kept the returns. The Court of Appeal, said that for title possession had to be shown. The defendant had not sufficient possession of the chattels in the lounge as they did not have a policy to find lost it. Whereas the plaintiff demonstrated possession and control, by handing it in and asking for it to be returned. The plaintiff received the money made from the sale of the bracelet and interest, 

Re Cohen 1953
This case established the legal principle that the landowner, the person who possessed the land is also the owner for the chattels found on it, subject to the condition that possession and control can be demonstrated. In this case a husband and wife lived in the property of a wife. After the both died (at different occasions) banknotes in unusual places such as kitchen cabinets were found. The courts said that this money should go to the wife’s estate as she is the landowner, exercised control over the property even when the husband past away. 

  • Titles that derive their existence from possession are original as the title is not derived from a prior title, it is created from possession. 
  • Possession titles are also relative though, some may derive their existence from statutes and some from factual possession which is clearly demonstrated in the case below.

Costello v Chief Constable of Derbyshire Constabulary 2001
The defendant seized a car from the plaintiff under statute as they believed it to be stolen as the true owner was unknown. However, the defendant never bought criminal proceedings and neither did they return the car. The Court of Appeal ruled that police under statute had a possessionary title to the car for a specified statutory period which had ended, and the plaintiff whether he was the owner or not had a superior possionary claim to the car than the defendant as he had demonstrated intention to possession and control over the car. 

  • In the English legal systems even the paper owners and those who acquire land through possession hold relative titles. If no one else, our titles will always be relative to the crown. 
  • In Australia, the British Crown had got ‘Radical Title. This title was relative and that is why at the time it could exist alongside ‘Native Title’. However, the Crown transformed this into a full-beneficial title by mixing their labour and thus extinguishing ‘Native Title’.

What makes adverse possessors so different?

  • Essentially nothing. At some point someone possessed land and thus gained title from the Crown, regardless or whether it was adverse or not. 
  • Land rights will always be subject to the limitation period of 12 years. 
  • Blomley proposes that property cannot exist without violence, the idea that possession is root of title which can then be sold or transacted upon, having more than one title causes conflicts and this why violence and property go hand-in-hand. 
  • The Ian Durey song ‘Blockheads’ is often showed to law students as the song discusses a sect of society commonly known at the time as Blockheads, before concluding that actually we are all Blockheads. Even derivative title at some point came from an original source which was ‘possession’ so adverse possessors aren’t some distasteful sect of society we should shun, so some argue. Lord Brown-Wilkinson, makes this point clear in Pye v Graham 2002. He says that much confusion would be avoided if we didn’t refer to adverse possessors as those who behave badly - it is just possession and the process of possession creating title. It is similar to a licensee where temporary possession is given not future rights. 
  • The future rights arise out of the Limitation Act 1980 s.15 (1) “No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”.

How does Adverse Possession work in law?

When Casey takes possession of X without permission:
  1. Casey acquires a title to X that is good against the whole world except anyone with a better right to possession (Harry the paper owner).
  2. Harry acquires the right to recover possession from Casey 

If Harry fails to take action to recover possession of X within the limitation period, he looses the right to recover possession. Casey will then be left as the person with the best right to possession. 


Pye v Graham 2002

The claimant was a property development company that bought some land for future development and in the meantime contractually allowed the defendant a license to graze some cattle and cut hay. The contracted stated that only once the contract ended, a new one would need to be formed. However, once the contract expired, the claimant continued to possess the land - while attempting to regain his contractual license- and eventually sought possession through adverse possession.

The court of first instance failed as they said there was a lack of ‘animus possidendi’ - intention to possess -as they were ex-licensees not squatters. However, the House of Lords, reversed the decision because intention was shown through the work and benefits they had already attained. Since the introduction of compulsory registration of land, a case like this is unlikely yo be judged similarly as the registered owner would be notified of the squatters activities.

Criminalisation of Squatters

Squatting in residential areas became a criminal offence under the ‘Legal Aid, Sentencing and Punishment of Offenders Act 2012’. 

s.122 Offence of Squatting in a residential building 

  1. a person commits an offence if -
  2. the person is in a residential building as a trespasser having entered it as a trespasser
  3. the person knows or ought to know that he or she is a trespasser and 
  4. the person is living n the building or intends to live there for any period.

  • Who is a trespasser? an ex-licensee?
  • This law has raised several question which I hope to share with you in future posts.

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