Property Law Week 4 Lecture Notes PDF

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Property Law Week 4 Lecture Notes Possession and Title: Land Title in Action to Recover Possession of Land; Nature of Possessory Title :! - As with goods, so with land; the common law distinguishes between possession and title to land and protects possession and not just ‘ownership’. ! - WHY?! - Historical reasons - in the past, limited documentary evidence - the fact of possessions was easier to prove. ! - Doctrine of Tenure - no concept of absolute ‘ownership’ of land, but rather a ‘relativity of title’. ! - ‘Public Order’ Rationale - see discussion of ‘self-help’ and forcible re-entry at [2.63].! HOW did Possessory Rights get recognised and protected by the Common Law? : ! Right follows the availability of a remedy! Actions developed to protect seisin/possession of land.! Seisin (archaic technical term) —>! Originally meant the same as possession! Then developed to mean the possession of a person with a freehold estate in land (a legal abstraction). ! - Seinsin was protected by the ‘real actions’ (leaseholds not protected)! - But the real actions (feudal forms) were technically complex.! - Now, no important distinction between seinsin and possession. !

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Possession and Title - The Action of Ejectment : ! - Over time, lawyers found a way around the limitations of the real actions through the action of ejectment. ! - Where defendant is in possession and plaintiff claims a right to possession (ie. P wants to recover land from the D in possession) what does the P need to show? ! - P has to show a ‘right of entry’. ! - So, what circumstances give rise to a right of entry? And was a period of prior possession sufficient? ! - For example, a leasehold was originally considered a personal right only. If the tenant in possession was dispossessed by a third party they had no recourse to recover possession. ! Title in Actions to Recover Possession : ! - Asher v Whitlock (1865) LR 1 QB 1 ! - FACTS : In 1842 and 1850, Thomas Williamson enclosed (built a fence around) some land of a manor belonging to a lord. He then built a cottage on the land acquired in 1850. He died in 1860, giving the land to his wife Lucy for the period of her widowhood, and after her death or remarriage, to their daughter, Mary Ann. The wife married the Defendant [Whitlock] in 1861 and they all lived on the land. The wife did not give up possession to her daughter, as per her late husband's will. Suddenly, both of the wife and the daughter died. The Defendant remained in possession. The Plaintiff was the daughter's heir, and thus argued that the land belonged to her (since title passed to the daughter upon the wife's remarriage). Brought an action for ejectment.! - Whitlock argued; ! - Williamson was the first possessor. ! - Williamson had not been in possession for the limitation period (for long enough to extinguish the ‘true owners’ title)! - That Williamson had an insufficient interest to devise and so could not maintain an action ejectment. ! - Does the existence of possessory interest depend upon the person being in possession?! - ARGUMENT : The Defendant argued that Williamson was technically a squatter (he just enclosed the land without permission) and therefore had no title to pass on. Therefore, the title never passed and the Plaintiff cannot bring an action in ejectment because she did not have title.! - ISSUES : ! - Possession of land - Adverse possession —! - 1. Can a squatter acquire rights which would entitle him to bring an action against a dispossesser? ! - 2. If yes, can these rights acquired from mere possession be passed on via a will? !

Property Law Week 4 Lecture Notes -

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Possession of land - Ejectment! JUDGEMENT : ! Cockburn CJ: ! Possession is good title against all the world except for the person who can show better title. ! Possessory interest is devisable and so Asher has a prior possessory right (as claims through Williamson). ! Because the wife remarried, her rights under the will ceased at the time of her marriage, and it was the daughter (through her father) who then had the right to the possession. ! 1. The doctrine of disseisin clearly states that the disseisor’s (a person who took possession of another's land) title was good against all but the disseisee (the person who was dispossessed). ! In other words, if A (the disseisor) wrongfully takes B’s (disseisee’s) title to some land, and C attempts to forcibly take the land from A on the grounds that B has a better title, C will not succeed. The only person who would succeed in taking the land from A is B, as B has a better title and has been disseised by A. ! Note: this is exactly like the discussion in personal property regarding how a thief or a mere possessor can sue anyone (bar the true owner) in conversion. ! This means that Williamson, or any squatter who takes possession of land, would have been able to sue anyone trying to dispossess him except for the lord of the manor. ! The lord of the manor acquiesced with Williamson's trespassing, and thus the Defendant cannot set up a jus tertii defence. ! 2. There is no reason why the rights acquired from mere possession cannot be passed on via a will. ! This means that the daughter could have brought an action against the Defendant, and thus, so can the Plaintiff. ! Mellor J: The fact of possession is prima facie evidence of a seisin in fee (if you are in possession, we assume you are the owner). The source of the proprietary interest is the presumption of seisin. Agreed with the above. Added that possession is ‘prima facie evidence’ of seisin – the source of the Plaintiffs’ proprietary right was seisin, not possession. ! General note: The Defendant's argument is contradictory - he is trying to say that there isn't a title or that the title cannot pass in a will...but if this is true then that means he is a trespasser because title never passed to him.!

The Availability of the Jus Tertii? : ! - Asher v Whitlock is treated as authority for non availability of jus tertii - but it was not pleaded. ! - Perry v Clissold 1907 also favours the view that the jus tertii is not available. ! - Clissold was in possession of land (but not owner). The State compulsorily acquired the land and Clissold’s estate claimed compensation.! - State claimed that Clissold was a mere trespasser without any interest in land. ! - Privy Council followed Asher v Whitlock ! - Perry v Clissold (1907) AC 73 : ! - FACTS : The Plaintiff [Clissold] took possession of land in 1881 without title and fenced it (adverse possession). The Plaintiff peaceably maintained possession and conducted his business, without anyone bringing a better title. The Defendant [Perry, Minister of Public Instruction in NSW and representing the Crown] compulsorily acquired the land to build a school. The Plaintiff wanted compensation. The Defendant refused.! - ARGUMENT : The Plaintiff argues that he is due compensation because he has rights as an adverse possessor. The Defendant argues that the Plaintiff is a trespasser, and has no rights. Thus, no compensation is due.! - LEGAL ISSUES : Possession of land - Adverse possession! - JUDGEMENT : ! - A person in possession of land as its owner and exercising peaceably the ordinary rights of ownership (an adverse possessor) has a perfectly good title against all the world but the rightful owner. I! - f the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations (Imp) applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title. ! - Note: This means that a jus tertii defence does not apply to land. The existence of a third party with superior rights has no effects on the ability of a party with only a possessor title to bring actions against dispossessors. !

Property Law Week 4 Lecture Notes - This goes against Doe d Carter v Barnard. This is because Doe d Carter v Barnard is wrong -

Cockburn CJ’s judgment in Asher v Whitlock overrules the authority in Doe d Carter v Barnard by stating that possession is good title against all the but true owner. That is the law. ! In this case, the owner had not come forward within the time specified. Accordingly, the Plaintiff acquired title through adverse possession.!

‘Modern’ Actions to Recover Land : ! - McPhail v Persons Unknown (1973) Ch 446. ! - FACTS : The Defendants [Persons Unknown), who were homeless, broke into unoccupied premises owned by the Plaintiff (McPhail] and made their home there. The Defendants refused to give their names and refused to leave the property. As squatters, whose presence was not acquiesced by the owner, they were trespassers and guilty of forcible entry. The Plaintiff commenced proceedings to take possession of his land.! - ARGUMENTS : The Defendants asked the judge to suspend the order of possession so they can have more time to find a new home.! - ISSUES : Possession of land - Ejectment Is the judge allowed to suspend the order?! - JUDGEMENT : The squatters are trespassers who have no title. ! - Furthermore, this isn't a case where the Plaintiff showed 'acquiescence' to their trespassing (ie, knew of their trespassing and did nothing about it). Rather, as soon as he found out, he acted. ! - In a case of trespassers, the owner of the land's remedies are self help or action through the court. ! - If he chooses, self help, he can immediately eject them using reasonable force. ! - If he chooses to come to the court, the court cannot put him in a worse position than the one he was in before bringing the claim. Therefore, the court is also bound to give him an immediate order, and has no discretion to suspend the order. ! - This is because of the principle that the owner could not be placed by the courts in a worse position than before bringing his claim. ! - If these were tenants (rather than trespassers) who have overstayed their lease etc, things would be different. ! - That would mean they were there legally originally, and not mere trespassers. ! - In such a case, the owner cannot use self help and thus the court is allowed to suspend the orders. ! - However, the Defendants were trespassers and the Plaintiff wins.! - Action between owner and squatters; ! - Self-help ! - Action of ejectment (since replaced in NSW by an action for recovery of land - Civil Procedure Act 2005, s20). ! - (nb: the rules of Civil Procedure - relating to the procedures for taking legal action - differ between jurisdictions). ! - Why are tenants treated differently to squatters? ! - http://www.legalanswers.sl.nsw.gov.au/guides/tenants_rights_manual/other_tenants/ squatters.html ! Possession in Mabo v Queensland (No 2)! Toohey J :! ‘Possession gives rise to rights’;! To defend! To sell! To devise (leave them in a will)! Possessor ‘acquires seisin even if possession is tortiously acquired (even if they enter as a trespasser)’! - Possession gives an estate in fee simple (unless the possessor is shown to have a lesser interest’. ! - As between mere possessors, prior possession is a better right. ! - A person’s title based on prior possession can be defeated; ! - By an older, therefore better, claim to possession.! - By adverse possession for the duration of the limitation period. !

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Property Law Week 4 Lecture Notes Possession : ! - Possession creates an interest in the possessor that is enforceable against the whole world except someone with a superior right to possession. ! - Such a right might derive from; ! - A better documentary title, or! - A period of prior possession. ! Summary : ! - Possession is good against the world except for someone who can show a better title (such as the true owner or prior possessor)! - Possession gives rise to a title - e.g. rights to possession! - Possession gives rise to a proprietary interest that the possessor can sell, transfer, devise! - Person defending a claim to possession cannot rely on the fact that a third party has a better title than the plaintiff - ie, jus tertii! - Periods of possession can be added up, where transferred - Asher v Whitlock. ! Limitations of Actions ! The Principle of the Limitation of Actions or Acquiring Title by ‘Adverse Possession’ : ! - Possession of land may in time become ‘ownership’ (best title) of land by operation of the limitation statutes (at common law there was no limitation period). ! - Under old system title an ‘owner’/prior possessor of land may be ‘barred’ from bringing an action to recover land and, their title to land is extinguished by operation of the limitation statutes. ! - It is also necessary to distinguish old system title and Torrens title (and note that different Australian states deal with this issue quite differently). ! Rationales of the Limitation : ! - Public policy reasons for the limitations and for allowing claims of adverse possession; ! - Certainty of title! - Improves alienability of land, should use land! - Recognise the status quo! - Problems of proof! - Known end to litigation! - Arguments against adverse possession : ! - Torrens system of title by registration removes some of the earlier rationales for ‘certainty’ of title (but compare widely different approaches in NSW and Victoria). ! - Human Rights arguments (against potential loss of property without compensation). ! Operation of the Limitation Act :! - What are the time limits to bring an action? Different time limits for the Crown and other persons. ! - When does time start running? When a ‘cause of action accrues’. - different categories depending on the nature of the rights claimed by the person bringing the cause of action. ! - When might the limitation period be extended?! - What happens at the end of the limitation period? ! Limitation Periods : ! - LA, s27(2);! - Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. ! Adverse Possession and the Crown : !

- Different rules apply; ! - Originally a limitation period of 60 years! - s27(1) a limitation period of 30 years (after 1 Jan 1971) BUT,!

Property Law Week 4 Lecture Notes - S170 Crown Lands Act 1989 - no title by adverse possession to ‘Crown Land’ (extremely -

limited exceptions) and Part 6A Real Property Act 1900 —> these Acts have made it virtually impossible for a person to acquire Crown land via adverse possession. ! We will only consider persons other than the Crown.!

Commencement of the Limitation Period : ! - When does a right of action accrue? (ss28-38)! - Differs depending on whether the person is presently entitled to possession e.g. LA s28 and s38(1). ! - OR! - If future entitlement to possession - e.g. An interest in remainder; LA s31 and s38(1)! - Special provisions in relation to tenancies (s34)! - Special provisions in relation to other interests. ! Present Entitlement to Possession (Limitation Act s28) : ! - 28 Accrual - Dispossession or Discontinuance ! - Where the plaintiff in an action on a cause of action to recover land or a person through whom the plaintiff claims; ! - a) has been in possession of the land, and ! - b) while entitled to the land, is dispossessed or discontinues his or her possession,! - The cause of action accrues on the date of dispossession or discontinuance. ! Limitation Act s38(1) : ! - Where, on the date on which, under this Act, a cause of action would, but for this section, accrue, the land is not in adverse possession, the accrual is postponed so that the cause of action does not accrue until the date on which the land is first in adverse possession. ! - This means, that in order for the time to start running, or the action to accrue, you need to have both; a person who has been in dispossession, and an adverse possession has been taken by some other person. ! - If a person has abandoned possession, time does not start running at that time, you need someone else to come and take possession contrary to the permission of the other person. ! Tenancies and Licences : ! - Often a person will be in possession or occupation of land with the original permission of the owner - e.g. under a tenancy agreement or licence. Different rules apply depending on the type of tenancy; ! - E.g. s31 - for a fixed term tenancy the cause of action will accrue to the ‘owner’ at the determination of the lease (ie. the end of the fixed term). ! - s34(2)(b) - for a tenancy at will the cause of action will accrue one year after the tenancy at will began. (Tenancy at will - termination without paying rent which may be terminated at any time). ! - Or, for a periodic tenancy, at the expiration of the relevant period; s34(2)(a). ! The Running of Time : ! - Once a cause of action accrues time starts running in favour of the adverse possessor (and against the person out of possession - either the documentary owner or a prior possessor). There are a number of issues that arise with the running of time. ! - First, successive periods of adverse possession can be added together to bar a claim - ! - Recall Asher v Whitlock - can transfer (assign) or devise a possessory interest. ! - By successive dispossessions (so long as continuous). If there is a break, time starts running again; LA s38(2) and s38(3). ! Stopping Time Running : ! - The person with the cause of action must effectively assert their title. This may be done by either; ! - Regain actual possession (more than a mere formal entry not sufficient - must have actual possession of the property; LA, s39) or! - Commence legal proceedings. ! - LA, s54 Adverse Possessor acknowledges the superior title in writing and signed! - Or pays money owing or makes payment under mortgage!

Property Law Week 4 Lecture Notes - Acknowledgement or payment binds all other persons in possession in the ensuing limitation period. !

- Effect is stops time running - and will need to start again. ! Extensions of Time :! - Under what circumstances can the limitation period be extended? ! - See, for instance, ! - LA s52(1) Extension in case of disability; ! - Disability defined in s11(3)! - Limitation period extended to 3 years after the person with the cause of action ceases to be under a disability. ! - LA, s55 Fraud - time doesn’t start running until the fraud is discovered or could with reasonable diligence discover the fraud. ! The Ultimate Bar : ! - LA s51! - Despite the provisions relating to disability, confirmation and fraud, there is a 30 year limit after which an action to recover land cannot be maintained. ! - What happens once an action is barred?! Operation of the Limitation Act - OST : ! - To eliminate the claim of a person who has better title to that of the person in possession; LA s27! - To eliminate the title of the person; possessory title enhanced because prior and better title are extinguished; LA s65! - Previously, only the action was barred - this meant that if the dispossessed owner regained possession, their title was restored to its original status. ! Adverse Possession and Torrens System : ! - We have been considering the general principles of adverse possession and the Limitation Act. ! - We also need to consider adverse possession under the Torrens system of title. ! - Torrens system of title is a system of title by registration - in brief, the Register is meant to be conclusive evidence of interests in land. ! - Title by adverse possession is sometimes considered to contradict the aims of Torrens Title. ! - In NSW title by adverse possession was only recognised in relation to registered titles in 1979 (Real Property Act 1990, Part 6A).! - s45D provides that an adverse possessor can now make an application for title by possession; limited to ‘whole parcels of land’ (or ‘residue lot’ - as defined). ! - s45D(4) is important - it provides that time only starts to run against a registered proprietor ‘without fraud and for valuable consideration’ from the time of registration. ! Operation of the Limitation Act - Torrens Title : ! - For Torrens Title Land in NSW, title is not automatically extinguished by the passing of the relevant time. ! - Instead, you need to read the Limitation...