LAW 1506 Lecture Notes - Lecture 2: Adverse Possession, Seisin, Ingot
23 May 2018
School
Department
Course
Professor
Ownership: encompasses the liberal triad of use, exclusivity and disposition. Largest bundle of rights
a person may possess
Possession: merely one of the bundle of rights that constitutes private property and ultimately
ownership. Can give rights against 3rd parties
• 'possession is very strong; rater than nine points the law.' - Lord Mansfield (1774) Kingston v
Homer
• 'English law has never worked out a completely logical and exhaustive definiiton of
possession USA v Dolfus
• A common law, not equitable concept (Contrast Popov v Hayashi)
Custody: distinct from possession. An employee holding goods belonging to the employer has
custody of the goods, legal possession remains with employer.
1. cause of action: possession under the Supreme Court Rules
2. Two elements need to be objectively assessed on the facts to determine if P has satisfied the
criteria to have possession in law; or whether they have mere custody of the chattel/ fixture/
land
1. Factum (fact)
o Whether the acts of control can be seen as sufficient to exclude others; the kind of
dominion that is possible from a practical point of view
o Actual (physical control) going into a substantial occupation of the area, Mulcaby v
Curramore Pty Ltd [1974] 2 NSWLR 464, 475; or
o Constructive: control of something that gives you possession (key to a safe)- lost when
abandoned Allen v Roughley (1955) 94 CLR 98.
2. Animus Possidendi (mental element)
o An intention to possess may be found even without the holder having that high degree of
awareness composed of complete subjective knowledge and an absolute resolve to exert
exclusive control
• If the claim is based on intent only, in the absence of actual control, no possession
Satisfy elements depending on the type of object
Chattels (personal property)
3. Need ACTUAL CONTROL-
do enough to reduce
something into your full
possession Young v
Hichens (1844) 6 QB 606
o Facts: Y was a commercial
fisher, spread net of 256m
in open water. Net almost
closed- H rowed boat into
gap, spread his net and
caught the fish.
o Issue: whether Y could
successfully allege that he
has a prior possessory right
which was superior to that
of the defendant
o Held: that the defendant
had acted unjustifiably (or
Fixtures (real property-
distinguish from chattels)
10. Presumptions:
1. If something is lying on
the surface of the land (even
something that is very heavy)
then it will prima facie be
treated as a piece of personal
property. –is it resting on its
own weight?
2. If something is fixed to the
land, even very lightly, it will
be treated as a fixture and
therefore real property. NAB
v Blacker (2000) FCA- para 17
3. Presumption can be rebutted
through applying land and
fixtures annexation tests
Real property- Land
17. Any possessor has a right
to sue to protect or recover
the possession
itself. Possession may
be obtained without
formality (s 31(c) LPA).
o A person wrongfully on
the land
(trespasser) who is
taking possession may
assert their possession
against later comers
18. who has the better right to
possession?
Possessio as seisi uder
tenure, now it is a relative
concept. Where two parties are
find more resources at oneclass.com
find more resources at oneclass.com
unconscionably), the
plaintiff was still in the
process of gaining
possession, but had not, in
fact, yet obtained
possession. Until the nets
had closed, the plaintiff did
not have control of the
fish. wild animals
are qualified property, not
private until reduced into
control.
7. Having regard to the type of
property and the
surrounding circumstances
…. a e see to hae
done all that was
possible to sufficiently
otrol… ad assert
possession
o sufficient control over
the object-
not "complete
dominion."
Rather, subject to the
particular
context and type of
property The
Tubantia [1924] All
E.R.Rep. 615
o Facts: 1916, German
warship sank
the Tubantia; 1922 P
began a salvage
operation.
o Steamers and tugs,
expert divers and
salvage crew. They
were unable to refloat
the Tubantia.
Accordingly, diving
operations began with
the intent of salvaging
anything of value.
Rumoured treasure of
$2m ($100m today).
o Held: Physical control
aouts to the use ad
occupation of which the
subject matter is
. Degree of annexation is
to be considered by
• Whether removal
would cause damage
to the land or
building to which the
item is attached;
• The mode and
structure of
annexation;
• Whether removal
would destroy or
damage the attached
item of
property; and
• Whether the cost of
removal would exceed
the value of the
attached property.
A. Object of annexation is
identified by: (Courts
place emphasis on object,
and look to
the circumstances Blacker
)
• Whether the
attachment is
for better enjoyment
of the
property; Curtains,
stove,
blinds Palumber v
Pulamberi (1986)
• The nature of the
property;
• Whether item was
intended to
be permanent or
temporary;
• The function to be
served by annexation
of the item.
Issues arise when
• land' sold or assigned, left by
will
• Mortgages of land- what
fixtures/ chattels included?
• Building c*s- when do
materials cease to be the
property of the builders?
claiming possession, the court
will assess who has the superior
right to possession.
Adverse possession
D. Common law: where
possession of land
is uninterrupted by
the owner, the possessor
can acquire title at common
law. Rationale is statute of
limitations- encourage
people to not rest on their
claims/rights;
• Must proceed until expiry
of limitation period
• At common law, the
limitation period was
sixty years;
• In South Australia, the
period is 15
years uninterrupted
use- Limitation of
Actions Act 1936, s4
• Torrens titled land
• Rare to succeed as
the proprietor's right to
possession is
indefeasible- absolutely
protected against claims
to adverse possession
until deregistration;
registration obliterates
prior possessory claims
• Hence, possessory
disputes over Torrens
land can only occur
between two persons
neither of whom are
the registered
owner, but who have
claims on the basis of
possession only (Asher
v Allen)
• in rare cases title can
be made defeasible
by;
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Ownership: encompasses the liberal triad of use, exclusivity and disposition. Largest bundle of rights a person may possess. Possession: merely one of the bundle of rights that constitutes private property and ultimately ownership. "possession is very strong; rater than nine points the law. " "english law has never worked out a completely logical and exhaustive definiiton of possession usa v dolfus: a common law, not equitable concept (contrast popov v hayashi) If the claim is based on intent only, in the absence of actual control, no possession. Satisfy elements depending on the type of object. Fixtures (real property- distinguish from chattels: presumptions: do enough to reduce something into your full possession young v. Hichens (1844) 6 qb 606: facts: y was a commercial fisher, spread net of 256m in open water. Net almost closed- h rowed boat into gap, spread his net and caught the fish.
