MLL327 Study Guide - Final Guide: Bailment, Adverse Possession, Eminent Domain
24 May 2018
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TOPIC TWO
EXPLAIN THE NATURE OF PERSONAL PROPERTY, HOW IT DIFFERS FROM REAL PROPERTY
Possession is notoriously difficult to define (Toohey J, Mabo 2)
PERSONAL PROPERTY:
Personal property refers to all property interests which do not constitute land. Land, or real
property, includes rights that relate to not only tangible, identifiable land interests, but also
intangible rights associated with the land such as easements or profits à prendre. All rights which
relate to tangible and intangible that that are not land will come within the categorisation of
personal property.
- Possession may arise by consensual or non-consensual way:
o Consensual: possession is consented to and limited or temporal in nature
(lease/bailment) coupled with right to reclaim the goods
o Non-consensual: more enduring possession without consent of owner
- Summary of methods to acquire possession:
o Consensual possession: sale, lease, gift or bequest etc.
o Misplaced/lost goods (finder)
o Goods never previously possessed (discovery)
o Stolen goods - even wrongful possession is protected
EXPLAIN THE CHARACTERISTICS GENERALLY ASSOCIATED WITH PERSONAL PROPERTY
AND THE WAY IN WHICH PERSONAL PROPERTY RIGHTS CAN BE PROTECTED
LEGAL CONSEQUENCES:
• Upon acquisition of control with the necessary intention possession has legal consequences:
• Possession confers a legal title upon a holder: an enforceable right
• Possession give rise to right to defend possession
• Hierarchy of title:
– True owner has a proprietary title
– Possessor has a possessory title
– True owner has a superior claim to object than possessor
– Possessos title is enforceable against the whole world, except true owner
– Proprietary title is stronger than possessory title
• Possessor may acquire title which is as good as ownership because it is enforceable against
the whole world, except against owner
• Possession may be subject to contractual duties
HANNAH V PEEL
FACTS
– Hannah found a brooch in a
remote part of house (which
belonged to Peel). The house
was used by the military (Peel
never moved into the house
which he bought). Hannah
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handed brooch to Police who
gave it to Peel (who sold it)
ISSUE
– Hannah sued to regain
possession of the brooch or its
value
– Peel asserted that he had
superior title because the
brooch was found on his
property
HELD
Held: Finder of brooch was held to be in
possession despite the fact that the house did
not belong to finder and the true owner of
brooch could not be located
Act of finding and retaining brooch constituted
physical act of possession and thereby
conferred possessory title upon finder
SCOPE OF POSSESSORY TITLE:
Possession is a concept which refers to the control that an individual has over the object which is the
subject of the property relationship. The level of control necessary to constitute possession will
depend upon the nature of the object. For example, to possess land an individual would need to
physically occupy or control whereas for a ring, an individual would need to wear it on their hand.
Possession may be a common feature of ownership however it does not amount to the same thing.
Possessing an object does not necessarily mean that the possessor owns the object however the
possessor will acquire a title that is stronger than a third party who has neither ownership or
possession.
Possession of land used to be an important method of determining ownership, in the absence of other
forms of documentary proof. With the introduction of a registered system of land ownership,
documentary proof is the most effective method of determining ownership and a documentary owner
will defeat the title of a bare possessor. However, with personal property, possession is one of the
primary indications of ownership. The public will generally assume that a person who has possession
of a chattel is the owner. This may turn out to be untrue however the possession will confer a good
title upon the holder which may only be defeated by the true owner or by the holder of an earlier
possessory title.
DOODEWARD V SPENCE
FACTS
The police seized the body of a two headed still
born baby which had been preserved in a bottle
from an exhibitor
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ISSUE
– It is enough that plaintiff was in
possession of the corpse and
the defendant took it having no
better title than the plaintiff
– Mere possessor is treated by
law as having property in goods
against one who takes it from
him wrongfully
– The law treats the right of mere
possessor as against someone
who takes it from him as
special popet
HELD
Griffiths CJ: if corpse is changed it can be
owned. Upon exercise of work or skill a human
body acquired some attributes differentiating it
from a mere corpse a right to retain possession
may be acquired. An order was made for its
return.
– Basis for recovery of possession
is irrefutable presumption
against the wrongdoer that
possessor is owner
– A mere possessor can recover
full value of chattel
– Possessory title cannot arise
over something which cannot
be owned
– If no property in corpse – no
special property in corpse
– No action for trover/detinue
for thing which cannot be
owned (corpse)
Doodeward decision approved in Roblin v Public
Trustees for ACT: (human tissue can constitute
property in accordance with principles of
reason).
POSSESSORY TITLE OF PERSONAL PROPERTY:
• Physical possession of personal property is evidence of title: person in possession is treated
as owner save against someone with a better right to title
• Dispossessed holder has a right to recover chattel
• Dispossessed holder must prove a right to recover chattel from possessor
• Problem where chattel is lost and later found by stranger
ARMORY V DELAMIRIE
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Document Summary
Explain the nature of personal property, how it differs from real property. Possession is notoriously difficult to define (toohey j, mabo 2) Personal property refers to all property interests which do not constitute land. Land, or real property, includes rights that relate to not only tangible, identifiable land interests, but also intangible rights associated with the land such as easements or profits prendre. All rights which relate to tangible and intangible that that are not land will come within the categorisation of personal property. Possession may arise by consensual or non-consensual way: consensual: possession is consented to and limited or temporal in nature (lease/bailment) coupled with right to reclaim the goods, non-consensual: more enduring possession without consent of owner. Summary of methods to acquire possession: consensual possession: sale, lease, gift or bequest etc, misplaced/lost goods (finder, goods never previously possessed (discovery, stolen goods - even wrongful possession is protected. Explain the characteristics generally associated with personal property.
