Accession notes - Summary THE LAW OF PROPERTY PDF

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Original Acquisition Notes: 

In Original Acquisition (OA) the acquirer gets a brand new title to the property. This is contrasted to derivative acquisition where title is only as good as the previous owner

2 options: 1. Where property has never been owned (only to moveables!) 2. Where property has been owner - in this case the law extinguishes the existing title at the same time as it confers a new title on the acquirer 

OA is limited by the fact when property is abandoned oppose to becoming ownerless

Crown as

e.g. if I divorce a man/woman/thing/teapot ( its 2018 guys) and throw the ring away, falls to crown 

I. II. III. IV.

Terms for original acquisition come from Roman Law and do not always meet the needs of the modern age OCCUPATIO SPECIFICATIO ACCESSIO COMIXTIO/CONFUSIO

Occupatio/ Occupation KEY = not already owned    

Achieved by taking possession with intention of becoming owner Little ownerless property, e.g. land when not ‘owned’ belongs to the Crown E.g. shells, pearls, gems Occupation can occur once, i.e. can never become ownerless again

EXCEPTION = wild animals, if they regain liberty become un-owned again, remember Evans Jones Rabbit - Does not apply to farmed fish, not wild - Animus Revertendi – Animals returning back to their gaff e.g. Bees Still owned cannot be acquired by occupation Accessio/Accession    

Where 2 pieces of Corporeal property become joined in such a way that one is subsumed by the other Problem question in exam with pouring drink into you own is accession! Accessory joins the principle Mechanical doctrine contract cannot control it; “force of nature”

- [Shetlands Islands Council v BP] e.g. house accedes to land- window frame accedes to house and thus land also 3 Elements needed I. II. III. -

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Physical Union [Christie v Smith’s Exuctrix] > 2 tonne summer house > greater the attachment the more likely accession has operated Functional Subordination i.e. must have a functional use to the other [Cochrane v Stevenson] > paintings and decorations have no functional subordination The Summer house in the Exutrix case filled a gap in the wall so helped enjoy the farm better Permanency [Brands Trs v Brands Trs] > only quasi-permanency needed [Howies Trs v McClay] > lace looms fitted to house > house altered so accession occurred Erskinne: A moveable thing may become immovable when FIXED or UNITED to another thing for its PERPETUAL use

Accession has 3 effects: 1. 2. 3. -

Accessory becomes part of Principle Principles rights encapsulate accessory ‘Conversion’ i.e. moveable > heritable Occurs when moveable accedes to heritable E.g. bricks (moveable) accede to house and become heritable by definition Existing title to accessory extinguished Gives party ownership If Jeff’s bricks used to lay Bill’s house without consent of J, he has a compensatory claim B is owner

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If accessory is ‘severed’ from the original, then 1 and 2 are reversed, but 3 not affected. E.g. if J huffs and puffs and blows house down he gets bricks back but they still belong to B.

Accession of Moveables to Land   

This is called a ‘fixture’, they are NOT ‘fittings’ i.e. furniture in the house > this has not acceded 3 conditions for accession: If physical union element provides decisive result other 2 don’t need to be considered E.g. heavy object may accede because of weight alone

“Functional subordination”;

  

Does the item appear to be attached for the improvement of the land or for the better enjoyment of the principle? KEY QUESTION E.g. heating system clearly improves house thus accedes > [Fife v Hodgson] Much depends on the circumstances. A picture is better viewed if hung but it also enhances the wall > [Cochrane v Stevenson] > look back they do NOT Accede in this case!

“Permanency”

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 Only Quasi-Permanency needed > [Brands Trs v Brands Trs] In the above case machinery installed by tenant on mining lease with intention of removing upon expiration Nonetheless it has acceded

Various factors need to be taken into account for permanency: a) If the physical attachment is greater than necessary to secure the item then that points to accession b) Mutual special adaption > e.g. lace looms case where building adapted to fit them c) Whether the item is something normally left or removed when a building changes hands. E.g. industrial machinery usually left d) Length of time it takes to install/uninstall. If it takes a long time then accession occurs 

The intention if the person who installed the item is also relevant. However many say it is a ‘better view’ to take a more objective approach; “a fixture is a patent for the whole world to see”

Moveables to Moveables  E.g. button to a shirt/paint to a car  Same rules apply as for moveable to heritable [J L Cohen Motors v Alberts 1985] > wheels do not accede to car because they are easy to remove  In establishing which is the principle: Bell > Where one cannot exist w/o other then it is the accessory > Where they can exist separately the principle is the one ‘which the other is taken to adorn or complete’ > Bulk prevails; essentially bigger item can be interpreted as principle [Khan v Minister of Law and Order] Land to Land    I. II.

E.g. land picked up by water and moved This is called an alluvio or alluvion Will accede to that which exists already Addition must be permanent Sudden changes do not count

E.g an avulsion caused by a storm  An alluvion usually occurs from nature however it can be manmade [Stirling v Barlett] - Building of a wall caused debris to come floating down river “Fruits”    

Where accessory is produced by the principle > accession by fruits E.g. crops/ fruit trees Young of animals accede to their mother, fruits to a tree, milk to a cow Separation does not change owner, a lamb would still belong to the mother...