LPRO- Unit 9- Notes - Summary Law of Property PDF

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LPRO UNIT 9- POSSESSION & HOLDERSHIP * distinguish between holdership and possession*.

 Rights in Property & Control of Corporeal Things

 Distinction between ownership, possession and holdership is actual physical control. o Distinction is only applicable with regard to property which can be held or controlled physically.  Definition- Physical Control- Actual, physical holding or domination of a corporeal thing.

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 Lawful Control The implications of any property relation based on physical control is determined by lawful/ unlawful control. Control of corporeal property is lawful when it is acquired and held in accordance with applicable legal rules and principles. If control is acquired and held in accordance with property rules, the control and property relation based on it will be recognised and protected by law. If control is acquired and held in contravention of applicable property rules, the control and property relation based on it will not be recognised or protected by law. o Certain consequences might be attached. Definition- Control of Corporeal Things- control of corporeal things is lawful when it was acquired and held in accordance with the applicable rules and principles.

- Good Faith (bona fides) & Bad Faith (Mala Fides)  When control of property is established and held lawfully the intentions of the controlling person are irrelevant.  the law is not interested with intentions as long as control was established in accordance with the law.  There is no such thing as an owner/ lawful holder in good/ bad faith.

- Legal Implications of Lawful Control  If control is established and held lawfully, the law will attached the consequences and implications which are normally associated with the form of control. o the nature of the form of lawful control will determine the exact consequences.  NB consequence of lawful control = lawful control is protected by law. - Categories of Lawful Control

2 Categories of Lawful Control 1) Ownership. 2) Lawful holdership.  Lawful holdership = A form of lawful control of corporeal property that belongs to somebody else.  Physical control of a corporeal thing is either lawful or unlawful depending on whether or not it was established and held in accordance with relevant legal principles.  Normal consequences and protection are attached to lawful control.  Unlawful Control - What Is Unlawful Control?  If control is acquired or held in contravention of applicable property rules, it will not be recognised or protected by law. o Certain consequences may be attached ex lege.  Definition- Unlawful Control- is physical control which was acquired or held in contravention of applicable property rules and will not be recognised or protected by law. - Good Faith (bona fides) & Bad Faith (mala fides)  In the case of lawful control the intentions of the lawful holder are irrelevant.  There is no such thing as a owner or lawful holder in good/ bad faith.  In the case of unlawful control the intentions of the controller are relevant. o The law attached different consequences to unlawful control exercised in good/ bad faith.

 Good/ bad faith refers to the mental attitude with which control is exercised.  If the unlawful holder is aware that his control is unlawful he acts in bad faith.  If the holder is unaware of the unlawfulness of his control, he acts in good faith.  Control can be bona fide and unlawful at the same time. o EG- Taking another persons jacket off a shelf while being under the impression that you are taking your own jacket. - Legal Implications of Unlawful Control  The law does not recognise or protect unlawful control but attached certain implications and consequences to it. o Consequences are aimed at preserving the peace.  In order to preserve the peace the law does not allow any person to commit further unlawful acts against the original thief. o Certain consequences are attached to the thief’s unlawful control. 1) 2) 3) 4)

Categories of Unlawful Control Unlawful possessors in good faith. Unlawful possessors in bad faith. Unlawful holders in good faith. Unlawful holders in bad faith.

 Possessors= Unlawful controllers who acts as if they were owners.  Unlawful holders= Unlawful controllers who act as if they were lawful holders.  Possessors in good faith= Unlawful holder who acts in good faith as if he were the owner of the property, based on mistaken belief that he actually is the lawful owner.  Possessor in bad faith= Unlawful controller who acts as if he were the lawful owner while knowing that he is not.  Unlawful holder in good faith= Unlawful controller who believes in good faith but mistakenly that he has some right to control the property, but not as owner.  Unlawful holder in bad faith= Unlawful controller is aware of the fact that he has no lawful right to control the property, but nevertheless acts as if he has such a right.  Ownership, Possession, Holdership - Lawful/ Unlawful

 Ownership and lawful holdership are the only forms of lawful control.  Possession and holdership are the forms of unlawful control. - As Owner or For Own Benefit  The distinction between ownership and possession and the 2 forms of holdership are based on the fact that holdership is control of somebody else’s property.  The owner and unlawful possessor control the property as owners.  Holders control someone else’s property for their own benefit, but not as owner. _________________________________________________________

*Chapter 13Holdership.

Acquisition

of

Possession

and

 Basic principle = 2 persons cannot physically control the same thing in the same way but independently at the same time. o “2 persons cannot sit on the same chair at the same time.  Control must be interpreted less literally and more functionally. - Corporeal Things and Rights in Property  Possession and holdership are property relations that apply specifically to corporeal things.  The concept of physical control does not apply to rights in incorporeal property because these rights and held and exercised in an abstract manner, not physically.

 Elements of Possession & Holdership  1) 2) 3) 4) 5)

Elements Control Corpus Animus Direct/ indirect control Shared control

1- Control  Physical control, in 1 form or another, is required for all property relations with regard to corporeal things.  Categories of control = Ownership, holdership and possession. o Categories are distinguished by their different legal implications. o Legal implications are determined by the intention with which control is exercised.  Definition- Control of Corporeal Things- Consists of 2 elements, a physical/ corporeal element and a mental element. o Physical element = The way in which the thing is actually held. o Mental element = The mental attitude with which the thing is held.  Consideration taken into Account When Determining whether Physical Control is Present1) The nature of the specific object can influence the nature and extent of control required. 2) The purpose and use can determine the nature and extent of control required. 3) Specific customs in specific fields can influence the nature and extent of control required. 4) Control need not necessarily be comprehensive. 5) Control need not necessarily be continuous. 6) Control need not be exercise personally and can be exercised through an agent. 7) The requirements for the establishment of control are stricter than for its retention once acquired.

2- Corporeal Element (Corpus)  Physical or corporeal element of control refers to the actual holding of the corporeal thing.  The element refers to the actual tangible or perceptible power over or holding of a thing.

Guidelines to Establish the Presence/ Absence of Control

1) Nature of a thing.  The nature of a thing can determine what kind of control is required.

 Size is an important factor in determining whether a person can exercise physical control over an object.  The manner and degree of physical control are determined by the size of the object.  Movables can be control more easily and directly than immovables.  Immovables are not controlled in the same way as movables because the nature is different.  The nature of an object can determine the different form of control in different cases.  Buildings and vehicles are usually controlled by way of keys.  The nature of a thing determines the way in which the thing can be controlled. 2) Purpose/ use of a thing.  The purpose and use of a thing must be taken into account when determining the requirements for controlling it.  EG- The way in which the use/ purpose of a thing can determine how it should be controlled.  The purpose for which a thing is used and the way in which it is used will determine whether a certain type and degree of physical control is sufficient for that thing. 3) Specific customs in special fields.  Specific customs and principles have developed with regard to control over special categories of commercial property.  Custom plays an important role in determining whether a certain type and degree of control is sufficient for specific purposes. 4) Control need not be comprehensive.  Depending on the nature, size and use of a thing, control over it need not extend to every single bit or part of the object. o Control over one part may be sufficient to qualify as control over the whole.  Principle applies to large and unwieldy objects.  Question= Whether the nature and use of a thing is such that control over one part or piece is sufficient to justify the inference that control extends to the whole. 5) Control need not be continuous.  Once control is established it may be interrupted, as long as it remains possible to establish control without help or interference from someone else.

 The nature, size and use of property will determine how long such interruptions can last for before amounting to loss of control.  Rule= Interruption becomes loss of control as soon as anybody else establishes a closer or stronger form of control. 6) Control need not be exercised personally.  Control can be acquired and exercised for and OBO the control by an agent.  An employee can acquire and hold something for the principal. 7) Strict requirements for acquisition of control  Requirements for initial acquisition of control are stricter than for the continuation of existing control.  Control serves a publicity function- To show that you have a property relation with this thing.  Result of the Considerations= Physical or corporeal element of control ca be described as effective control .  Effective control is required.  Effective control= The strongest and most effective corporeal relationship in existence at a specific time.  Effective control is a purely factual matter. o Control is determined as a matter of fact and not with reference to laws and legal principles. o Firstly, the person who has physical control should be in a closer and stronger physical relationship with the thing than anybody else. o Secondly, the person in control should be in a position to resume uninterrupted control without help from or reference to anybody else.  If an object is stolen, control is lost and the thief establishes a closer physical relationship and the help and interreference of the police is needed to resume control.  Main question= Whether, as a matter of fact, actual corporeal control can be resumes of each item as and when you want to.

3- Mental Element (Animus)  The mental element is a matter of fact and refers to the mental attitude and intention with which a thing is held/ controlled.

 When establishing the mental aspect of control the focus is on the actual mental attitude of the person and no on whether they are right in what they think.  Mental attitude or intention towards control is established factually by asking what the persons intention was or by establishing his intention from his actions. Aspects of the Mental Element of Control Mental capacity is required. Conscious control is required. Intention to hold for a principal in sufficient for own control. A specific intention WRT control is required – a. Intention as holder/ owner. b. Intention to hold for ones own benefit. 5) Nobody can change the nature of control by means of a change in intention.

 1) 2) 3) 4)

1- Mental Capacity is Required  Without mental capacity to form a will/ intention which can be established, recognised and given effect by law, no mental or intention element towards control is possible. 2- Conscious Control is Required  Even when the person is incapable of forming a legally relevant intention to control, it is necessary for that person to be aware of the corporeal element of control before the mental element can be formed.  As long as the person is unaware of the of an object on their person, such person cannot form the mental intention to control it.  Exception= The intention to establish control over mail as soon as it is placed in the mailbox has already been formed before (by having the mail box). 4- A Specific Intention towards Control must be Established  Once a person with the required mental capacity is conscious of corporeal control, a specific intention or mental attitude towards control over the thing must be formed.  Defintion- Mental attitude or intention with Which a Thing is Controlledo Intention to hold as owner= If the controllers attitude is that the thing belongs to himself, it is called the intention of an owner.

o Intention to hold for ones own benefit= If the controllers attitude is that the thing belongs to someone else, but the controller holds a different interest of his own, the attitude is called the intention to hold for ones own benefit.

Intention to Hold as Owner (Animus Domini)

 Prescription Act provides that a person can acquire property originally by acquisitive prescription if he exceeds a certain form of possession for 30 years.

Intention to Hold for One’s Own Benefit

 The intention to hold property belonging to someone else for ones own benefit is based on the fact that someone else is actually the owner, and that the holder is aware of the fact that soeone else is the actual owner, and that the intention to hold such property for one's own benefit is based upon the owner’s permission to do so.

5- Nobody can Change the Nature of Control by Means of a Change in Intention  Intentions with regard to property are only recognised inasfar as they are reflected in exterior facts or actions.

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 Direct/ Indirect Control The principle that 2 people cannot sit on the same chair at the same time applies only in the strict sense to people who want to control a thing for conflicting interests. Control of a corporeal thing is direct when actual physical control is exercised immediately by a person. Control of an incorporeal thing is indirect when it is not exercised immediately by the direct controller himself, but by someone else. Direct control= immediate control. Indirect control= mediate control.

 Shared Control  Shared control is exercised by more than 1 person at the same time.  All the sharing controllers exercise direct control simultaneously.  Shared control does not violate the principle that only 1 person can exercise control at a time as that they share the control and do not compete for it.

 As soon as sharing controllers begin to compete for control the basic rule becomes applicable and 1 person might oust the control of the other.  EG shared control= Control exercised by a husband and wife over the family home and its contents....