10

The law of property

1 Ownership

Ownership has been described as the entirety of the powers of use and disposal allowed by law (Pollock: First Book of Jurisprudence). The owner of a thing has an aggregate of rights, namely (i) the right of enjoyment, (ii) the right of destruction, and (iii) the right of disposition, subject to the right of others. Thus if A owns a hat he or she can wear it, alter it, burn it, or merely throw it away. There are, however, limits to these rights. If A throws the hat at B, this might be an assault on B (or a battery if the hat strikes B), for under the general law B has a right not to be interfered with. Similarly in regard to land, A may enjoy and use it, sell it or give it away; but use of this land is subject to the rights of others as allowed by law, e.g. in nuisance and tort. Today a landowners rights are much circumscribed by legislation aimed at social control, e.g. the Town and Country Planning Acts, 1971 and Buy this file from http://www.download-it.org/learning-resources.php?promoCode=&partnerID=&content=story&storyID=647 1990, The Countryside and Rights of Way Act, 2000, and the Planning and Compulsory Purchase Act, 2004. Permission for any change in the use of the land owned has to be obtained from the local planning authorities. Moreover, Government departments and local authorities may compulsorily acquire privately-owned land and use it for public purposes, e.g. as a site for a school or college. A person may own land notwithstanding that another has an easement, such as a right of way, over it. As already mentioned, the ownership of land grew out of possession. An early landowners rights were possessory, and in medieval law title to the land was based on the concept of seisin (a possessory right). The word ownership was not found in use in England before 1583, and the word property was uncommon before the nineteenth century. People spoke of possessions and estates. In course of time the idea of ownership grew with an advancing industrial and capitalistic economy. The right of possession changed into the right of ownership which we know today. Ownership may be acquired in the following ways. Ownership may be thus obtained by (i) creating something, e.g. a clay jar or a picture; (ii) occupation, where a person claims something not owned by anyone, e.g. a wild bird or animal, or by occupation of property abandoned by another; or (iii) accession, e.g. if A owns an animal which begets young, the young animals become the property of A by accession. Through sale, gift or compulsory acquisition by law, e.g. where goods or land are compulsorily acquired by statute, or taken by distress in execution of judgment.

(a) Originally

(b) Derivatively

(c) By succession

On the death of a previous owner another person may succeed to the property and thus acquire ownership, e.g. a beneficiary under a will.

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250 Law Made Simple

2 Possession

Possession in law is based on possession in fact. It involves two concepts: (a) the corpus possessionis, meaning the control over the thing itself which may be exercised by a person, their servant or agent; and (b) the animus possidendi, which is the intent to exercise exclusive possession of the thing itself and thus to prevent others from using it.

Possession is, therefore, largely a question of fact, as is borne out by common experience. Thus, if A lends a fountain-pen to B for examinations, B is in temporary physical possession of the pen. If A sends shoes to the shoe repairer, B, to be mended, the repairer possesses them while the articles are under repair. In each case B is known as a bailee in law. The ownership of the pen and the shoes remains in both cases with A, while the possession resides with others who exercise temporary control. Possession may be obtained lawfully and unlawfully. Lawful possession needs no explanation, as the above examples demonstrate. As to unlawful possession we may note that if X, a thief, steals Ys watch, X acquires possession but not ownership. Clearly X acquires no rights to the watch as against the lawful owner. Moreover, if X sells the watch to another person, Z, the rights of ownership in Y are not destroyed. Nevertheless the thief has possession, and usually endeavours to maintain exclusive control over the thing stolen until Buy this file from http://www.download-it.org/learning-resources.php?promoCode=&partnerID=&content=story&storyID=647 such time as a decision is made to sell it, discard it or throw it away. It is possible to possess things without being aware of them. I possess the books in my library, even though they may be individual books on my shelves whose existence or particular disposition I have forgotten. I nevertheless control them and, as I have the intent to exclude others, I possess them in law. Possession is not lost even though I may have temporarily mislaid an article. In English law even wrongful possession may, if continued for a length of time, ripen into a claim which is indistinguishable from ownership itself. Thus, where a squatter occupies derelict land or land in respect of which the true owner is unknown or untraceable, and continues in uninterrupted possession for twelve years, using it in a way inconsistent with the true owners right, the owners title to the land is destroyed. The squatter thereupon acquires a lawful title of ownership with rights against the whole world. The law acknowledges that wrongful possession of land for twelve years, and goods for six years, may mature into lawful ownership, thereby destroying the previous owners title and even the legal right to recover the land or goods by action (Limitation Act, 1980). Although possession is, as we have noted, largely a question of fact, it also has considerable legal significance. When we speak of possession being nine points of the law we refer to the legal rights attaching to possession itself and to the protection given to it by law. First, actual possession is evidence (though not conclusive evidence) of ownership. Proof of ownership of a thing is sometimes difficult. Let us suppose that I purchase a dictionary from a bookshop. I may not keep the receipt, and there may be many similar dictionaries. Conclusive and incontrovertible proof that the dictionary is mine becomes difficult. I may only be able to prove that it is mine by my signature on the book and by my having had possession of it for some time so that I can identify it. Similarly it is sometimes difficult to prove ownership of land. A may claim ownership of land by right of inheritance or purchase from some other person, C, who may be able to prove ownership or a good root of title, e.g. by a deed showing the devolution of the property. If one can go back far into the past, the title may be traced ultimately to someone who took possession, so originating the ownership of the particular portion of land in dispute. All

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The law of property 251

ownership of land finally derives from possession. As claim may, of course, be defeated by a rival claimant, C, who can prove that their predecessors in title were in possession or that A wrongfully dispossessed C. The law has always protected the rights of possession. Secondly, the law protects possession by various procedural rules. Suppose X possesses something (e.g. a pen) to which Y lays claim. If the latter uses force in retaking (called in law recaption), the physical act of recovery may involve an assault or breach of the peace for which Y may be held responsible. As regards premises, the Criminal Law Act, 1977, provides that squatters may be charged with criminal offences in certain circumstances. A finder of goods is entitled to them as against all persons other than the true owner (Hannah v. Peel, 1945). As a general rule the right to take action in respect of trespass to land inheres in the occupier (i.e. the person in possession), for it is the right of possession or the enjoyment of possession which is disturbed or infringed by trespass.

3 Property

The word property has several meanings, and in law we must be careful to distinguish between two of them. (i) Property may mean the thing or things capable of ownership. In this

Buy this file from http://www.download-it.org/learning-resources.php?promoCode=&partnerID=&content=story&storyID=647 sense the word includes not only physical (or corporeal) things such as

a pen, desk, watch, and land, but also non-physical (incorporeal) things such as patent rights, copyrights, debts, etc. This is the popular sense of the term property. (ii) Property may mean ownership. Thus, we may say in law that A has the property in a watch, or in other words, A owns a watch. Both statements mean the same. In a sale of goods where, for example, a student buys a pen, the shop assistant hands the pen to the buyer, and, at the same time, passes the property in the goods (i.e. the ownership) to the buyer by delivery on the sale. Classification of property. English law has classified property in various ways. Land, the main source of wealth, is by the very nature of things treated differently from most other kinds of property, as we shall see later. Property may be divided into two classes: (a) Real property (i.e. freehold interests in land); and (b) Personal property, which may be subdivided into (i) Chattels real and (ii) Chattels personal. Chattels real means leaseholds in land. Chattels personal comprises choses in action and choses in possession. The meaning of the terms mentioned above are explained in the following pages. Real property. In medieval law property was said to be real if the courts of law would restore to a dispossessed owner the thing (res) itself. For example, if A, the owner of freehold land (the term freehold will be explained later) were dispossessed or evicted or turned out of their land by B, A could bring a real action against B for the recovery of the land. If B took away, let us say, a car owned by A, the remedy available to A was a personal action at civil law against B for the recovery of the specific property

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