Finder's Title

Costello v Chief Constable of Derbyshire Constabularly 2001

Facts: The defendant seized a car from the plaintiff under statute as they believe the car to be stolen because the true owner was unknown. However, the defendant never brought criminal proceedings and neither did they return the car.  

Judgement:

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 possessor claim to the car than the defendant as he demonstrated intention to possession and control of the car.

Importance:

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’

Re Cohen 1953

Facts: A husband and wife lived in the property of the wife. After both died (at different occasions) banknotes in unusual places such as kitchen cabinets were found. 

Judgement:

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.

Importance:

This case established the legal principle that the landowner, the person who possessed the land is also the owners of chattels found on it, subject to the condition that possession and control can be demonstrated. 

Waverly BC v Fletcher 1996

Facts: The defendant was using a metal detector in a park owned by the claimant council and found a broach. He reported the broach and the Corner decided that the broach was not a treasure trove. The issue then was who did he broach belong to?

Judgement:

The Court of Appeal held that the claimant had a better right to the broach as it was found within the land, it was attached to the land rather than on the surface. It belonged to the party who owned the soil.

Importance:

This and the Parker case are cases which show that possession of a good is not sufficient, whether the owner has exercised contract and the positioning of chattels is important too. They are a good cases to compare adverse possession too. 

Parker v British Airways Board 1982

Facts: An air passenger found a gold bracelet in the international executive lounge of an airport. The lounge was leased to the defendants. When the gold bracelet was handed in, the plaintiff requested that it be returned to him had the true owner not been found.The defendants sold the bracelet for £850 as the true owner was not found and kept the returns. The plaintiff appealed.

Judgement:

The court of appeal said that the air passenger had a better right to the gold bracelet than the occupiers - British Airways Board, because it was found that the Board did not have a policy of searching for lost articles. The plaintiff was awarded £850 in damages and £50 in interest.

Importance:

The plaintiff in taking the bracelet into his care and control acquired possession which was against everyone but the true owner. By handing it in he acted honestly discharging his duties of a finder. The only way the defendants could demonstrate an interest is if they showed such care and control over the things in the lounge which looking at their policy they did not.

The Procedure for Adverse Possession

1. The future rights of an adverse possessor 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.”
2. First adverse possession must be established via factual possession and animus possidenti.
3. Then identify if the land is registered or unregistered
4. Then identify is the adverse possession is a case pre-2003 or post 2003
5. If it is pre-2003 and unregistered, after 12 years the land automatically becomes the adverse possessors under s17 of The Limitation Act.
6. If it is pre-2003 and registered, after 12 years, the land is held on trust under s75 Land Registration Act, an extra three years is required for procedural reasons and after 15 years  the possessory title is changed.
7. If the 12 years end after 2003, the unregistered rules do not change.
8. If the 12 years end after 2003 and the land is registered, after 10 years the adverse possessor can apply to the land registry and the paper owner is given 65 working days to respond. If he does not respond, then the land becomes the squatters otherwise the owner is given two years to chuck the squatters out. 
9. In September 2012, criminalization of adverse possession in residential areas can into form.
10. Also note that under LRA 2006 Sch 6  para 8(2)  no application for adverse possession can be made where the registered propriatrator is mentally disabled, ill or abroad does not matter. 

Requirements of Adverse Possession

What is adverse possession

1. Adverse possession can be explained as the process of possession that changes the ownership of land from the paper owner to the possessor.
2. It arises out of the s.15 (1) Limitation Act 1980. 
3. What is needed to establish adverse possession?

• Factual Possession - where there is strong physical evidence that somebody is in possession of the land e.g. that may include fencing and locking the land. 

• In Powell v McFarlane, Slade J provides an in-depth explanation on what factual possession means.
• This explanation was accepted by the House of Lords in Pye v Graham, here the judges reinforced the need for appropriate degree of physical control to count as factual possession.
• Contrast this to Tecblid v Chamberlin Ltd where children playing on the land and tethering of ponies was not sufficient. 
• Important to ask is the land being possessed or merely used for profits as in Powell v McFarlane. 

• Animus Possidendi - an intention to possess . How do we prove this?
• The actions by which the owner has made the intention clear, Buckinghamshire CC v Morgan 1990 and Powell v McFarlane 1977
• Affirmation that outward conduct is demonstration of intent, Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999]
• Land must be used for the squatter’s advantage and locking/blocking access to land is an indefinite evidence for the intention to possess and factual possess, Buckinghamshire CC  v Morgan 1990, Pye v Graham 2003 and Powell v McFarlane 1977
• Key is intention to possess not acquire, in Lodge v Wakefield 1995, the mistaken belief that you own the land combined with factual possession was sufficient to prove that adverse possession had taken place. 
• Furthermore, in Pye v Graham it is made clear that if the possessor offers to pay rent or agrees (so long as he actually hasn’t given it), is  fine for adverse possession because it is an intention to possess not acquire.
• Often, intention is intertwined with factual possession but in Pye v Graham, the distinction is made clear between the two. An example is provided; X is in occupation of a locked house which he has agreed to look after for a friend, whilst friend is away. He may have factual possession but the intention which is very much linked to the third requirement is missing and thus cannot be adverse possession. 
• (Possession must be adverse as with consent that would not be adverse possession)

1. If however, the paper owner forced you off the land, or decides to enter into a licensing agreement then adverse possession is no longer possible. This is because in the first case the squatter fails to assert a better claim and in the second the possession will no longer be adverse.
2. It was actually the case of Leigh v Jack which was held in Beaulane Properties Ltd v Palmer  that the old doctrine stated the use must be different to the paper owner’s. This was of course rejected in Pye v Graham where the notion of an implied license was too.
3. The justification for adverse possession lied in the Lockean principle that if you mix your labour with resources then the end product should become yours.
4. It is important to note that, 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. 
5. From a Human Rights prospectus it was found that adverse possession does not infringe human rights in Pye v Graham, as adverse possession was justified control of use of land than a deprivation  of possession and was within margin of appreciation. Another point is that under Article 8 of ECHR sometimes arguments can be made that English law breaches the right to respect for home and family by not allowing adverse possession.
6. In registered land, any rights in the course of being acquired by adverse possession count as overriding interests which means that any third party purchaser say, is also bound by the rights of the possessor.

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. 

CASE OF ADVERSE 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.

Law of Property: Titles

Law of Property: Titles

What is title?

‘Title’ is subject to a variety of definitions. The main idea of a title is that it is a notion that denotes the rights or interests or entitlement in a property. In the English Law jurisdiction, title is not concerned with highlighting an absolute owner. In fact, in many occasions courts will be faced with two different parties with the same title. It is used to weigh the relative strengths of the interest or right in a property and thus resolve a dispute between two parties. For example, both X and Y may have an interest in property Z, but the title’s will denote strengths of the interest such that X may have a stronger entitlement as they have a fee simple and B a lease. 

There exists no statutory definition of title, but the commonplace understanding is that it is a right to assert your interests in X against strangers. It is a legal concept, as opposed to possession which is a practical notion being defined by measurable variables like exclusive possession and an intention to possess. 

As mentioned before, in English Law there is no such thing as an absolute owner and so the emphasis is on possession and title. The reason for this is that ownership brings up conceptual and philosophical issues which cannot be answered, as we saw with theories such as Honoré’s ‘Bundle of Rights’. The fact that the English legal system is adversarial i.e. courts are looking to resolve a dispute between two parties rather than find the ‘real truth’ has had a key role in making possession and title the centre of establishing property entitlements.

However, with the introduction of land registration in 1925, the nature of ownership is changing. The system implies that there is a such thing as an absolute owner  because courts will always given preference to the registered owner of land. 

Glancing back on the Mabo 1992 case, when the British took sovereignty of Australia, they acquired radical title i.e. an entitlement to grant beneficial property interests such as fee simple estates but not any interest that overrode the original Aboriginal rights. However, but because they used the land the title gained more strength and it did not remain as merely a ‘native title’.

How is title acquired?

There are two ways to acquire a title?

1. Derivative 

Derivative titles are titles that derive from a pre-existing title e.g. in the sale of a property, gift, inheritance, grants such as leases etc.

1. Original

Original titles are titles that have been created from scratch and do not rely on an pre-existing title for existence. In land, these are becoming extremely difficult to find. Examples include, intellectual property that you create, colonial titles (here the Lockean argument of mixing labour with property is used) and in the English legal system,  adverse possession (which is now illegal in residential areas).

As one can see from the registration system, the property regime is becoming more concerned with the proof of title than actual ownership.In this jurisdiction, the law is concerned with asking people to proof their titles, protection it with registration and in doing so, prevent people with using courts to prove title. 

Registration

Registration was introduced in 1925 and in 2002 became compulsory. 

Pre-1925, you would have have to prove your title through possession, provenance and through limitation of action. 

1. Possession

Possession is typically established by finding exclusive possession and intention to possess. 

1. Provenance

Provenance, refers to the notion of derivative title, it is the idea of looking at the source of ownership. Previously, owners would have to demonstrate a chain of 60 years but now has been reduced to 15 years and applies only unregistered land. This is because provenance in practical proved tiresome and extremely difficult. 

1. Limitation of action

The Limitation Act 1980 is the source of this requirement. It gives a person with a better title 12 years to make their claim otherwise the squatter or party with the original weak entitlement gets the stronger entitlement. 

Registration has been great in making property transactions easier and proving title as provenance and limitation of  action can be quite problematic. However, it is important to point out some of the weaknesses of registration and that includes that it can be impractical on  certain types of properties such as easements - is it really reasonable to ask individuals to register pathways etc? What about the Lockean argument that if you mix your labour with certain resources than surely that should be yours, is it fairer that registration is worth more? [it is interesting to see that actually money is in essence the fruits of your labour so when you register you are indirectly using your labour to acquire property]. Furthermore, the registration system can lead to unjust results which should be point of the legal system, to avoid injustice. This is exacerbated with issues of fraud and human error. 

“Nemo dat quad non habet” - “No one gives what he does not have”

Nemo dat quad non habet stresses the importance of title, because it ensures that people are not giving more than what they have. So, you can’t give the title of a fee simple to your daughter if you only have a lease.  

It is extremely important to protect ‘good’ and ‘proper’ titles and this is what the property regime seeks to do especially with the new registration system. 

Cash is an exception for practical reasons. It is difficult to trace the various possessors of cash and if we started doing that it makes daily life incredibly difficult. This is why if you steal cash, you have the best title to it as you are the possessor. 

The nemo dat quad non habet rule is also in conflict with the financial sector of the 21st century, as the sector is reliant on debts which aren’t always possible to repay.

CASE STUDY: BRUTON V LONDON & QUADRANT HOUSING TRUST 2000

The council gave a license to the defendant to use the property at certain times. The defendant was a charitable housing organisation that granted the accommodation for a weekly rent. The plaintiff claimed that under the Landlord and Tenant Act 1985, that the defendant had a legal obligation to repair and the defendant responded this was not possible because of nemo dat quad non habet. The judges created a non-propreitary lease as they could not establish a lease because of nemo dat quad non habet. 

Possession as root of title

3 consequences of when someone takes possession of land without permission:

1. They acquire a title to the land better than anyone else through possession.
2. The real owner acquires the right to recover possession
3. The real owner misses the limitation period to claim his entitlement and the property moves under the possession of the person who takes possession.

In unregistered land, after 12 years of squatting you cannot be evicted and thus the squatter has the next best right to the property after the original owner. It all relates back to Limitation Act 1980 as opposed to an property concept. 

What about registered land?

After 10 years of squatting, the squatter can go to the Land Registry, prove that he has had possession for 10 years and make a claim that he wants to acquire the land out of adverse possession. The Land Registry send a notification to the original owner giving them 65 days to object. 

If he/she objects then they have two years to evict the squatter but if he/she does not the squatter becomes the owner. 

The idea is that if you own land, you also have responsibility for the land. The intention of the owner is not of importance in the process of adverse possession e.g. it is not good enough to say I had plans to build in 50 years time. 

What counts as adverse possession?

CASE STUDY:  J.A. PYE (OXFORD) V GRAHAM 2002

The the plaintiff allowed his neighbour, the defendant to utilise a part of his land under a contractual agreement that stated that once the contract ended a new contract would need to be formed. The plaintiff did not in fact enter a new contract but the defendant continued to occupy because he wanted to develop the land. The defendant after being in adverse possession of the land for 12 yrs seeking to attain the property via prescription. 

The judgement established that possession requires:

1. Factual Possession
2. An intention to possess not own

How the case progressed in the legal system?

High Court - Under Land Registration Act 1925, defendants were lawful owners. 

Court of Appeal - Defendants only using land because of contract thus did not have possession thus could not have the land. 

House of Lords- Agreed with the High Court, as a result of this the 2002 Land Registration Act was created and outlawed prescription and required that if land was to be adverse possessed, the original owner would have notification and a chance to object.

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