Possession, Seisin and Ownership in Real Andpersonal Property


2.1   The distinction between proprietary and possessory title

Possession is a usual incident of property ownership. Many individuals who hold a proprietary interest in an object also possess that object, and in many cases this is because the proprietary interest was acquired for the purpose of using, occupying or controlling the object to which it relates. Nevertheless, possession is not a definitive characteristic of a proprietary interest, and a person might have possession of an object without actually owning it. For example, if Ben purchases an investment property and leases it out to Ralph, Ralph acquires a leasehold interest in, and possession of, the property, and Ben retains ownership without possession of the property. Hence possession does not identify ownership and, indeed, may exist without it.

Possession itself is a physical rather than a legal notion. Possession exists where it can factually be proven that an individual is in occupation or control of an object. On the other hand, a proprietary interest can only be established where it can be proven that an individual has a legally enforceable right to exclude the rest of the world.

2.1.1   Possession: forms of control

Whether an individual has possession of property will depend upon the character of that property. Where the property is land, possession will generally exist where it can be established that the individual is in full occupation of that land. Where the property is personal, a person may take control by the act of finding and retaining the property in a private capacity. Hence, in Hannah v Peel [1945] 1 KB 509, the finder of an old, valuable brooch was held to be in possession of it, despite the fact that the house in which it was found did not belong to the finder. The court held that the act of finding and retaining the brooch constituted the physical act of possession and thereby conferred a possessory title upon the finder. An individual will retain control of personal property where they place that property in an area which is controlled by them privately. For example, where an individual takes a car and places it in a locked garage at their home, they have taken control and will therefore be regarded as having possession over that car.

In some situations, a person may take control of personal property which is discovered in an area open to public access. The general principle here is that personal property which is found upon land rather than attached to it, where the land is open to public access, may be controlled by the finder—unless the owner of the land indicates a clear intention to control all objects existing on that land. In Waverley BC v Fletcher [1995] 4 All ER 756, the English Court of Appeal held that the local council could claim a brooch discovered by a person using a metal detector in the park because the lawful owner or possessor of land owned all that was attached to it and that included things found in the ground of that land. Furthermore, metal detecting was not permitted under the terms of public entry to the park and, therefore, using a metal detector and digging up the land constituted acts of trespass. Auld LJ noted that possession of land generally carries with it possession of everything which is attached to or under that land—including the right to possess in the absence of a better title; it makes no difference that the possessor of the land is not aware of the thing’s existence. Auld LJ went on to adopt two general principles: (1) where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title; and (2) where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it.1

2.1.2   Consensual possession

Where the holder of property has acquired possession with the consent of the owner, the possessor will hold a legally enforceable right—existing for the duration of the possession. Hence, where an owner of land confers exclusive possession of that land on another for a limited duration of time, that other will hold a lease existing for the duration of the possession. (Leases are discussed in detail in Chapter 15.) Where the owner of personal property delivers that property to another for a limited duration of time, that other will have bailment in the property. Bailment will arise where possession of goods is conferred on another. Bailment only applies to personal property and gives the bailee (transferee) a legally enforceable right to retain the goods and the bailor (transferor) a legally enforceable right to regain possession. Bailment can arise where the owner of goods delivers possession to a third party, or where the possessor of goods delivers them to a third party.

Significantly, bailment differs from a sale or transfer because the bailor retains a right to regain possession. This right is not retained in an ordinary sale or transfer, unless it is conditional. A hire purchase contract is a good example of a bailment. Usually, a hire purchase company retains ownership of the hired goods for the duration of the contract and gives the hirer possession of the hired goods—with an option to purchase at the expiration of the contract. During the term of the hire purchase contract, the hirer is the bailee and the bailor retains the right to regain possession in the event that the terms of the hire purchase contract are breached.

2.1.3   Non-consensual possession

Where a person acquires possession of real property without the consent of the true owner, this possession is protected under the law until the true owner enforces his rights. Where the true owner exercises his or her proprietary rights and reclaims possession of the property, a non-consensual possessory title will be defeated. If the true owner does not exercise these rights within an appropriate time frame, the possession may amount to an adverse possession in which case the true owner will be prevented from enforcing his or her rights. Adverse possession is discussed in detail in Chapter 4.

Where a person acquires possession of personal property without the consent of the true owner, the possession will also be protected until the true owner enforces his rights. Non-consensual acquisition of personal property may occur in a number of ways: (1) a person may find goods which have been misplaced by the true owner; (2) a person may find goods which were never previously possessed; and (3) a person may steal goods from the true owner.

Where possession can be proven, the possessor will acquire what is referred to as a ‘possessory title’. A person holding physical possession of an object is in a fairly strong position—a position which has been consistently protected by English law. The only title that can defeat a possessory title is a proprietary title, hence giving credence to the old adage, ‘possession is nine-tenths of the law’. The strength of possessory title was clearly enunciated in the classic case Armory v Delamirie (1722) 1 Str 505. On the facts of that case, the plaintiff, a chimney sweep, discovered a valuable jewel and took it to a goldsmith for it to be valued. The attendant to the goldsmith pretended to weigh the jewel but in fact took out the valuable stones without the knowledge of the plaintiff and offered him a small sum in return. The plaintiff demanded the jewel be returned and the attendant returned it without the valuable stones. The plaintiff then brought an action in trover. The court held that the ‘finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover’. This principle forms the backbone of what has come to be known as the relativity of title principle; each title that an individual holds in an object carries with it a relative strength which is measured according to its level of enforceability. The holder of a possessory title holds a good title against all but the true owner who holds absolute title and, until ‘absolute title’ or a ‘full and better’ ownership is proven, the courts will protect the rights of an actual possessor. This has been reiterated in the classic statement by Bracton: ‘Everyone who is in possession, though he has no right, has a greater right than one who is out of possession and has no right.’2

The primary justification underlying the courts’ persistent protection of possessory title is twofold: to protect the established occupation of a possessor against unjustified intervention and, as noted by Maitland, ‘to uphold the public peace against violent assertions of proprietary right’.3 The legally enforceable rights of a possessory title holder are of a similar kind to those conferred under proprietary title, although a possessory title holder does not have the right to exclude the rest of the world because the true owner may assert title. Nevertheless, every possessor has the right to use, enjoy, sell or devise his title. This principle was clearly established in Asher v Whitlock

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