LAW 1506: Property Law Exam Notes 2017

Transcription

1 LAW 1506: Prperty Law Exam Ntes 2017 Prperty Rights What is prperty Chattel - persnal prperty Real prperty - land Fundamental characteristics 1. Pssessin; and 2. Exclusivity Three dminant prperty rights (liberal triad f prperty) 1. Use The right t use and cntrl the thing. This gives the wner pwer and cntrl ver their prperty. 2. Exclusivity Prperty rights prvide wners with exclusive pssessin and the exclusive right t determine hw the thing is used. 3. Abandnment/alienability Prvides wner with the right t sell, give away, abandn r even destry their prperty. Alienability is the exclusive right f the wner and s lng as there is n gvernment regulatin limiting use, the wner can alienate the thing as they see fit. Classificatins - real and persnal prperty Real prperty: land and fixtures Estates, mrtgages etc. Persnal prperty: mvables Chattels (tangible) Intangible (IP, shares, bank accunts etc.) Prperty vs Cntract Prperty rights are 'gd against the whle wrld' whereas cntractual rights are enfrceable nly against parties t the cntract. A prperty right is strnger than a cntractual right. Legal rights and equitable rights Legal rights (can have same rights in equity) Estates Leases Easements Prfits Mrtgages Rent charges Even if yu d nt have a legal right, yu may still have an equitable right in prperty. Example answer: Sue des nt have a legal claim against Tm because she has failed t cmply with sectin 28(1) f the Act. When the sale f her hme ccurred, the transactin

2 was nt dcumented in a written cntract as required. Hwever, she still has a claim in equity General/Trrens Law Equity General law land (ld system Trrens system land Deed, valid chain f title, fr a right recgnised at law. Registratin in the Trrens System. Principles f cntract, trust and fraud. Sectin 249A RPA (SA) + exceptins t indefeasibility such as fraud. Prperty rights at general law (in rem) a. Recgnised at law i. Estates, fee simples, life estates, leases, easements, prfits, mrtgages, rent charges b. Valid title; and c. Deed Basic frmality rule fr general law land Sectin 28(1) LPA 1936 (SA) - n interest shall exist at law unless it is granted r cnveyed by deed. Sectin 30(2) LPA - A high degree f frmality c.f. an exceptin fr shrt leases. By cntrast, a legal interest will nly exist in Trrens land if it is registered by the prprietr Sectins 57 and RPA Thmas v Srrell The law recgnises nly a finite number f relatinships r rights ver freehld land. Each right is defined and the definitin cnstitutes the criteria r characteristics f the right: nly dealings which satisfy the definitin r criteria can be rights at law. All ther dealings ver land, even if by deed, d nt cnstitute prperty rights at law and create merely a persnal right. Remedies Available 'in rem' The remedy can be enfrced against the land r gives the Plaintiff standing because f their rights in the land. Sme remedies include: An actin fr pssessin; Remedy t trespass r nuisance; Injunctins r specific perfrmance; Statutry remedies f a mrtgagee r lessr Intrductin t Trrens System Basic principles Mirrr principle; Curtain principle; and Indefeasibility Real Prperty Act 1886 (SA) Sectin 57(3) - Every instrument registered in the register bk r the register f Crwn leases will be deemed t be a deed duly executed by the parties.

3 Sectin 69 - The title f every registered prprietr f land shall, subject t such encumbrances, liens, estates, r interests as may be ntified n the certificate f title f such land, be abslute and indefeasibly, subject nly t the fllwing qualificatins i. Fraud ii. Etc. Registratin under the TS prvides gd title merely thrugh the fact f registratin. Trrens registratin curers any defects f title that existed befre registratin takes place, subject t sme exceptins. N ne wh registers a dcument that is the result f fraud can rely n the prmise f the Trrens register that registratin will give an unchallengeable title. The basic principle is that the defrauded persn can always claim the prperty back despite what is n the register until it is sld t smene wh is nt fraudulent and relied n the accuracy f the register. Prperty rights at equity An equitable interest will bind all the wrld except equity's darling (which is a bna fide purchaser withut ntice f earlier equitable interest). Bna fide - genuine/real Prperty Rights in Equity (In persnam) a. Express trusts Express trusts f land arise when the wner f the land declares that they hld the land r have therwise received the land fr the benefit f thers. The declaratin f express trusts must be evidenced in writing, signed by the settlr setting up the trust - Sectin 29(1)(b) LPA A trustee can als be the beneficiary. Express r implied trust. Express trust is the majr frm f hlding f title t land in equity. b. Cntracts fr estates/interests; and Valid cntracts cncerning land may cnstitute equitable rights inland, equivalent t the legal right cntracted fr - prvided that they als cmply with certain rules cntained in sectin 26(1) LPA c. Fraud and uncnscinability The ccurrence f fraud in regard t land can give rise t equitable rights ver land. Fraud = uncnscinability Fraud 1. Where a landwner has btained their title thrugh breach f a principle f fraud r uncnscinability. 2. Where a landwner has represented r led anther t believe and that belief was relied upn, that she shall have rights in their land and then realised frm this psitin s as t amunt t breach f fraud, then there is an equity in the ther. Remedy fr equity = prprietary, therefre rescissin. Trrens system and equity Sectin 249 RPA 1886 (SA) Sectin 69 RPA - statutry exceptins t indefeasibility. Estates and Interests Estates Fee Simple Life Estate

4 Exclusive use, basic title right f wnership t land. Estates can be divided int freehld and leasehld land. The difference turns n whether the duratin is an ascertainable perid. Only tw freehld estates are cmmnly used tday: a fee simple, which is a grant t a persn and their heirs; r the life estate, which is a grant fr ne life nly. Estates cnstitute the primary land title rights at law. Leases A lease embdies the grant f exclusive pssessin f the land fr a certain duratin measured by years r part f a year and is usually granted fr a mnetary rent. The landwner (lessr) grants exclusive pssessin t a lessee/tenant. Leasehlds (leases) Interests cnstitute a lessr land title right at law when cmpared t freehld (r fee simple). Easements An easement embdies a definable right created fr the benefit f land and allws the wner f the benefits land t 1. D smething ver nearby land e.g. right f way; r 2. Stp the wner f the nearby land frm ding smething. An easement cntemplates tw titles - the dminant land with the benefit and the servient land with the burden. Prfit a Prendre A prfit is the grant f a definable right t take smething ff land which naturally ccurs there, such as the right f hunting r shting r the right t quarry stne r sil. Prfits are ften cupled with a licence t enter the land, t render them useable. Mrtgages The grant f land as security fr the lan f a sum f mney t be repaid. Mrtgages at cmmn law wrked by transfer (cnveyance) f the fee simple f the secured land t the persn lending the mney, fllwed by the re-cnveyance f the fee simple if and when the mney was repaid. Tday they wrk by impsing a 'charge' against the secure land - i.e. the land is 'charged' with the debt and the mrtgagee culd enfrce its remedies against the land but n actual transfer f the estate takes place. The mrtgagr is the landwner securing their land and granting the mrtgage. The mrtgagee lends the mney and receives the benefit f the mrtgage. Rent charges The grant f an RC against land as security fr the peridic payment f a sum f mney. Restrictive cvenants Nte: easements, prfits, mrtgages and rent charges cnstitute subsidiary interests in land at law and are granted ut f estates in land. Nte: each estate and interest can exist at either law r equity (except restrictive cvenants which can nly exist in equity). Victria Park Racing v Taylr Facts Taylr built a viewing platfrm n his land which was next t the hrse track s he culd view the races. Then he bradcast the results f the races ver the radi. The race track lst business because sme peple wuld rather listen t the races n the radi rather than buy a ticket t the track. Decisin N 'prperty' in a spectacle

5 Exam answer: there is n prperty in the [insert spectacle] and therefre Jn cannt rely n the curts fr a slutin (Victria Par Racing v Taylr). R v McKay Facts McKay had been charged with murdering Wicks. The unusual circumstances f the case led the jury t find McKay guilty f manslaughter. The jury als made a plea fr mercy. The applicant was sentenced t imprisnment fr three years. The unusual circumstances were as fllws: McKay ran a pultry farm which had been subjected t cntinual theft f fwls. These matters had been reprted t plice, but little had been dne t stp the thefts. A security system cnsisting f a series f bells had been attached t the fwl Issue pens t warn McKay when intruders entered the area. When the alarm bells rang, McKay grabbed a laded 22 rifle and sht Wicks frm a distance. The curt was required t decide whether the killing was justifiable. Decisin By a majrity the Supreme Curt f Victria held that the cnvictin shuld stand, but that the sentence be reduced. Hwever, what is imprtant is that Smith J (in dissent) cnsidered that the jury was entitled t cnsider that the thefts made it likely that Wicks was invlved in these ffences n a regular basis and that it was pssible that injury wuld ccur t McKay when he cnfrnted Wicks, either frm Wicks himself r frm assciates f Wicks. While Smith K was in dissent, the case further demnstrates the imprtance placed by the curts n wnership f private prperty. The judiciary is prepared t recgnise that a persn is entitled, under sme circumstances, t take extrardinary measures t prtect their wn prperty. Licences A licence is a persnal right. Cmpensatin/damages may be awarded fr breach f cntract. Bare licence: verbal and revcable at will. Cntractual licence: if licence cntract breached remedy is in damages (nly) Cwell v Rsehill Racecurse Facts Issue Cwell paid t enter Rsehill Racecurse. At sme pint later, he was ejected. Cwell sued Rsehill fr damages fr assault. If Cwell was n the racecurse pursuant t a cntractual licence, and this had been revked unlawfully, his remedy wuld be limited t the amunt f the admittance fee. Hwever, if Cwell had a prperty right t be n that land, the damages recverable wuld be far greater. The licence t be n the land wuld thereby be irrevcable and the damages wuld be greater than the admittance fee. Decisin The curt held the Cwell nly held a cntractual licence. His damages were limited t the admittance fee. Heidke v Sydney City Cuncil (SCC) Facts

6 Issue Heidke wrte t the SCC seeking the hire f sme f its cuncil grunds. He was acting as the sprt rganiser f the yuth carnival fr peace and friendship. In reply, the cuncil specified the grunds available and the charges payable. It als indicated that charges were payable in advance, but that these wuld be refunded if the grund became unfit fr use. Heidke hired the grunds, the Cuncil later seeking t revke that licence. Whether the licence culd be revked. Decisin In distinguishing its decisin frm Cwell, the NSWSC recgnised that this was a licence cupled with an interest, and accrdingly it was irrevcable. An injunctin was granted aiding the plaintiff t use the val. The significance f this decisin lies in its implicit rejectin f the Cwell decisin, and the ability f the curts t find a slutin t dispute, where they perceive a wrng t have been cmmitted. Equity prvides a slutin, damages being an inadequate remedy in this case. Example answer It appears frm the facts that Sam has nly a licence t be n the prperty because there is nthing t suggest therwise. Once his licence was terminated, he became a trespasser. He can make a claim against [name] but he will be limited t damages (Cwell). It appears frm the facts that Chris has a prperty right cupled with a licence because [insert facts]. Accrdingly, he will likely be able t get an injunctin frm the Curt, preventing [name] frm stpping Chris frm [insert activity] (Heidke). Rights vs Licences A licence is permissin t d smething r fr smething t be dne. Bare licences Permissin r prmise in regard t land, unsupprted by cnsideratin. Revcable by will f persn giving it, prvided the licensee has been given reasnable time t leave. When a bare licence is revked, the licensee becmes a trespasser and can be remved frm the land using reasnable frce: McPhail v Persns A majr r cntinuing trespass may be restrained by injunctin, therwise a remedy in damages may be sught. But, cannt sue fr B.O.C as there is n cntract. N payment fr the licence. Nt right t exclusive pssessin. Revcable Nt binding n third parties A licence t ccupy land cupled with n ther right r prperty interest. A bare licence gives n right t exclusive pssessin and is revcable at any time by the grantr. It ends if terminated r If the hlder dies and des nt dispse f r pass any interest in prperty. Cntractual licences Usually when there has been payment fr a licence. Permissin r prmise in regard t land supprted by cnsideratin. Prbably irrevcable (but if revke claimed in damages nly) A cntractual licence is revcable by will f the land hlder even befre any time expressly r impliedly expressed in the cntract. Has there been cnsideratin? Is there a cntract? Can sue fr B.O.C When a cntractual licence is revked, the licensee becmes a trespasser.

7 Prbably nt binding n third parties A licence t ccupy land given n terms cntained in a cntract. If a cntractual licence is revked ther than in accrdance with the terms f the cntract, the licensr may be liable t the licensee fr damages fr breach f cntract. A cntractual licence may be made irrevcable by the licensr against the licensee in sme circumstances. Licences cupled with prperty interest Irrevcable Binding n third parties. Jaggard v Sawyer Issue The central matter befre the CA was whether t grant an injunctin rather than damages. The Plaintiff, Mrs Jaggard, argued that by awarding damages rather than an injunctin, the trial judge had licenced a cntinuing invasin f her prperty rights. The basis f the trial judge's decisin rested n the fllwing premises: The P's injury was small; The injury was capable f being estimated in mney; The injury culd be cmpensated by a mnetary award; and It wuld be ppressive t grant an injunctin. Decisin The curt held that nrmally an injunctin wuld be granted where there is a breach. Hwever, in the unusual circumstances f this case, the Curt did have jurisdictin t decide that damages wuld be an apprpriate remedy, even thugh this wuld licence a cntinuing invasin f private prperty rights. The curt recgnised that this wuld nly be dne cautiusly but that the grant f an injunctin, like all equitable remedies, is discretinary. The imprtance f this case lies in its uphlding that private prperty rights are nt always able t be prtected abslutely and that judges d have the capacity t reslve these matters as they see as apprpriate in the circumstances f the case. Limits t land (fittings and fixtures) Fixture: an item f tangible persnal prperty annexed t land in such a way as t becme part f the land. Ownership f a fixture fllws wnership f the land and an item which is a fixture thus ceases t be the persnal prperty f the persn wh attached it t the land. Whether an item is a fixture depends n the degree and purpse/bject f annexatin. Fitting: persnal prperty yu can take with yu when yu leave Example - the tap yu installed in yur garden becmes a fixture but the hse attached t it will be a fitting. When land is transferred, fixtures will be transferred with it t the purchaser. If the item is affixed, then it is presumed t be a fixture and the nus f prf is n the persn alleging that it is a fixture. If the item is freestanding, it is presumed t be a chattel and the nus f prf is n the persn alleging that it is a fixture. Degree f annexatin Whether remval wuld cause damage t the land r building t which the item is attached; The mde and structure f annexatin; Whether remval wuld destry r damage the attached item f prperty; and Whether the cst f remval wuld exceed the value f the attached prperty. Object f annexatin

8 Whether the attachment is fr better enjyment f the prperty; The nature f the prperty; Whether the item was intended t be permanent r temprary; The functin t be served by annexatin f the item. Palumberi v Palumberi Facts Issue Dispute ver: venetian blinds (free standing); curtains; built-in cabinet (nt screwed in); TV antenna (U brackets); carpets; utside sptlight; light fittings; stve (free standing); and prtable heater. Fixtures r fittings Decisin The curt nted that there has been a change in emphasis frm the degree f annexatin t a greater reliance n bject r purpse f annexatin. Thus, yu fcus n individual circumstances in each case. The cabinet was free-standing and was a chattel, als TV antenna and blinds because they were installed simply fr better use and enjyment f the prperty and given the cnnectin was nly slight. By cntrast, the stve and carpets were fixtures because they were held t be essential. Summary f key principles Private prperty is abut the relatin between the thing and the peple wh pssess, assert r claim an interest in that thing. It regulates the pwer between the varius stakehlders. The curt is prepared t prtect prperty, but the bundaries f that prtectin are at times ill-defined. The relatinship between cntract and prperty is evlving but the advantages and disadvantages f establishing a prperty interest are recgnised in cases such as Cwell, Heidke and Ashburn. The decisins indicate the licences cuples with prperty interests ARE IRREVOCABLE and can bind third parties. Lesser interests established inside a cntractual relatinship may nt enjy the same prtectin. Pssessin In General Effective physical r manual cntrl r ccupatin Absent evidence t the cntrary, it prvides evidence f wnership. Pssessin f a thing fr lng enugh can becme wnership In the same way, the passage f time can bring t an end the wner's right t recver pssessin f a thing. Pssessin can mean: Actual - physical pssessin Cnstructive - cntrl ver smething that gives yu pssessin (e.g. a key t a safe). Pssessin is a cmmn law, nt equitable cncept. Cncepts Ownership Ownership encmpasses the liberal triad f use, exclusivity and dispsitin. It is the largest bundle f right a persn may pssess. Pssessin Pssessin is merely ne f the bundle f rights that cnstitutes private prperty and ultimately wnership. It can give rights against third parties.

9 Custdy Distinct frm pssessin. Fr example, an emplyee hlding gds belnging t the emplyer is generally regarded as having custdy nly, with legal pssessin remaining in the emplyer. Pssessin: elements Pssessin in law i. Factum (fact) Whether the acts f cntrl can be seen as sufficient t exclude thers. The kind f dminin that is pssible frm a practical pint f view. Taking custdy f a thing ii. Animus Pssidendi (mental element) An intentin t pssess may be fund even withut the hlder having that high degree f awareness cmpsed f cmpete subjective knwledge and an abslute reslve t exert exclusive cntrl. An intent t treat the thing as ne's wn. What ther facts might a curt cnsider when determining the existence f a pssessry right? Cntext/degree: a curt will cnsider whether the act f cntrl was sufficient t exclude all thers. Key questin - what kind f dminin is pssible frm a practical pint f view? Functin: the degree f pssessin demanded will depend n the functin that the cncept f pssessin is designed t serve. Pssessin by cnsent Mst prperty pssessed is btained with the cnsent f smene else wh pssessed it. They may have been purchased, received as gifts, leased r brrwed. The transfer f pssessin f gds is called delivery. A temprary transfer f pssessin is called a bailment. Bailment is ften regarded as the separatin f wnership and pssessin. Fr example, the library cntinues t wn the bk while yu pssess it and will have the right t pssess it again when yur right cmes t an end. Pssessin withut cnsent It is pssible t btain pssessin f a thing withut anyne else's cnsent. First, yu might take pssessin f smething which has never been pssessed befre. This can ccur when yu: Find smething un-wned (e.g. a shell n the beach); r Create a new thing, such as a laf f bread. Secndly, yu might find smething which smene else has lst. Thirdly, yu might take smething frm anther persn withut their cnsent: Cnversin r theft. Relativity f title Pssessin was 'seisin' under tenure. That is, pssessin f a recgnised estate in land - s these prperty rights can be passed t thers. But, pssessin is a relative cncept - wh has the best right t pssessin at present? Asher v Whitlck Williamsn was NOT the riginal wner. In 1846 he enclsed (fenced) waste land f a manr and eventually enclsed mre and built a cttage. He died in 1860.

10 In his will he left the land t his wife Lucy as lng as she remained unmarried. Then, upn her death r secnd marriage it wuld g t their daughter, Mary. In 1861 Lucy remarried the defendant Whitlck, wh mved in. Lucy and Mary died in 1863, Mary aged 18. Whitlck cntinued t live n the prperty. Mary's heir was the plaintiff, Asher. Held: Williamsn had the first pssessry title which has passed n (thrugh law f successin). Thus, the heir at law is really claiming the pssessry title f Williamsn. The fact that Whitlck was in actual pssessin f the land did nt give him the best title vis a vis the heir. Nte: in the case f Williamsn, he was nt really the true wner. He was the pssessr. Thus, bth the plaintiff and the defendant wuld still be subject t the prir title f a third party. Decisin The curt held in favur f Asher, wh, via the daughter, std in the shes f Williamsn. Cckburn CJ states the clear prpsitin that it Whitlck had dispssessed Williamsn, Williamsn wuld have had a right t recver the land frm Whitlck. Williamsn's prir, and therefre better, pssessry interest, wuld have given him a better right t the land than Whitlck. Asher v Whitlck was apprved in Australia by Allen v Rughley Which Party was successful in Asher v Whitlck T determine wh has a right t a disputed piece f land, the curts lk at wh has a relatively better title. S a plaintiff, wh is dispsed f land, cannt recver that pssessin, unless they can demnstrate a prir pssessry title r wnership f the land. This is the relativity f pssessin - yu determine the pririty between the tw claimants, based n their relative psitins. Can the riginal title hlder bring an actin against a trespasser r squatter t regain ccupancy?

11 Asher v Whitlck - pssessin was traced with reference t an early pssessin. This demnstrates the relativity f title. In this sense, wnership runs deeper than the persn in pssessin. Nte that Williamsn was NOT the true wner. He was a pssessr. Thus, bth the plaintiff and the defendant wuld still be subject t the prir title f the true wner. Allen v Rughley Facts In 1823, The Crwn granted 'Plunkett's Land' t the Plunkett's and Hyland (a mrtgagee) cnveyed the land t Cusbert in 1880, at which time Cusbert went int pssessin. He remained there until he died in 1895 and thrughut his time there he did nt hld the dcumentary title. Cusbert left by will t his sn William, a life estate, and the remainder in fee simple went t his ther children. Allen (sn in law f Cusbert) went int pssessin in 1898 and remained there. Allen and his wife, and William, all lived n the prperty frm 1898 t William lived in New Zealand frm 1900 t 1915, and thereafter lived fr varying perids back n the prperty in a hut, while Allen and his wife had the hmestead. In 1942 William died, and in 1950, the ther children under Cusbert's will brught an actin t recver the land frm Allen, wh stayed n the land after William's death and in defiance f the will f Cusbert. The ther children f Cusbert expected t take a fee simple title pursuant t the will n the end f William's life tenancy. Issue Allen argued that althugh he had nt extinguished the ther claims t the land thrugh an adverse pssessin f 20 years, the nus remained with the ther children t shw either gd dcumentary title r a pssessry title better than his. Otherwise, his uninterrupted pssessin gave him the right t maintain an actin f ejectment against the dispssessr. Decisin The HC sided with this argument and held that a persn with a bare pssessry interest and nt ne sufficiently develped t maintain an adverse pssessin actin, may have a superir right s lng as they dn't abandn it. Cite As a right, pssessin cntinues until it is abandned. This case is a gd example f hw pssessry title has been handled by the curt. Pssessin - Real Prperty Seisin: Frmal legal wnership f a freehld estate in land, as ppsed t mere beneficial wnership r pssessin n land. It cam t mean wnership f the estate a persn held in land; fr example, a persn may be 'seised f an estate in fee simple'. This term is n lnger relevant but it is imprtant t understand the cncept. In terms f land pssessin is i. Ging int substantial ccupatin f an area ii. With an intent t exclude all ther persns, including thse whm might have a better claim. When d yu pssess land? When yu ccupy it (substantial ccupatin f an area) - e.g. live there, build n it, fences, crps etc. With an intent t exclude all thers (including thse wh may have a better claim). The cmmn law recgnises pssessin itself - withut mre - as a right in land, any pssessr has a right t sue t prtect r recver the pssessin itself. This is true regardless f the estate.

12 Pssessin: Is a factual assertin f entitlement; Will be bjectively assessed n the facts accrding t the nature f the land, the extent and histry f the ccupatin, its incnsistency t the claims f thers, the advertisement f the ccupatin t the wrld. Where these tw criteria are satisfied, a persn is in pssessin f land. Curts apprach t pssessin In a dispute cncerning land, the curts apprach the matter by cnsidering whether the plaintiff r the defendant has a relatively better right t the land. Pssessin des give rise t an interest in the land and the persn wh is dispssessed f land will succeed in recvering the land unless the defendant can prve a superir right t pssessin. The defendant may prve such a superir right t pssessin by shwing that he/she has: A prir and thereby superir right t pssessin; r A dcumentary title. Adverse pssessin In Asher v Whitlck Williamsn was presumably in pssessin 'adverse' t the true wner. Where pssessin f land is uninterrupted by the wner, the pssessr can acquire title at cmmn law. Ratinale is statute f limitatins - encurages peple t nt rest n their claims/rights. Nec vi (nt by frce), claim (stealth) precari (permissin). Adverse pssessin is pssessin which is peaceful (nt by frce) and pen (nt secret) and withut the cnsent f the wner r prir pssessr. The tw cmmn law requirements are: That there must be factual pssessin; and That the pssessr has the intentin t pssess. Yu can eventually get an estate in fee simple thrugh adverse pssessin. Pssessin must be exercised against the wner, as if by right. In SA, the perid is 15 years uninterrupted use - Limitatin f Actins Act 1936, s4; Law f Prperty Act 1936 (SA) s 31(c) But in Trrens System it is vary rare - in SA yu can apply t Registrar, wh 15 years has passed - s69(f) RPA Pssessin will be bjectively assessed n the facts accrding t the nature f the land, the extent and histry f the ccupatin, its incnsistency t the claims f thers, the advertisement f the ccupatin t the wrld and like factrs. Where these criteria are satisfied, a persn is in pssessin f the land. Thus, even a persn wrngfully n the land i.e. a trespasser r squatter, may be in pssessin. Equally, a where a persn wh has pssessin is dispssessed, they remain a prir pssessr. Pssessin may be btained withut frmality - s31(c) LPA 1936 (SA) As a right, pssessin cntinues until it is abandned: Allen v Rughley As a right, the right t pssessin may be assigned: Asher v Whitlck Cnversely, the actin fr pssessin may be statute barred by failure t cntest a dispssessin within an apprpriate time (15 years in SA - s 4 LPA). Thus, at cmmn law tday, the right f an wner r pssessr may be statute barred by 15 years f adverse pssessin by anther r thers. Suppse land at cmmn law, befre the Trrens system. X is the wner in FS f the land wh lives away frm it. S takes pssessin f the land. S ges away fr a while and T takes

13 pssessin f the land. S sues fr pssessin as prir pssessr against T. The curt will decide this matter between S and T - tw wuld-be pssessrs - thugh neither claims the wnership rights fllwing frm the FS. Basically, the jus tertii (the right f the X as fee simple wner) is irrelevant in that neither S nr T can blster their claim by pleading that the ther is nt the wner. X is nt a party t the actin between S and T. The curt will decide the dispute cnsidering if either r bth S and T have satisfied the criteria f pssessin and if S abandned pssessin r perhaps, if S assigned pssessin t T. If bth S and T can prve pssessin, then, since feudal times, the rule is that S has the right t pssessin as S's right is the first in time. The right f the prir pssessr is preferred and S can evict T upn the pssessry actin. If S wins the dispute, S may then have t cntend with an actin fr pssessin by X as wner as lng as X is nt statute barred. It fllws frm this that pssessin at cmmn law is a relative cncept. It can be established as a right in land frm the tw criteria. Yet the questin remains: wh has the better right t pssessin? As pssessin is a relative cncept, the rights f a higher rder flwing frm it are als relative - a fee simple culd be pen t challenge frm a prir pssessin if a predecessr f the fee simple wner had dispssessed smene. Assume X is the wner in fee simple f land wh lives away frm it. Otherwise, X has a valid title at cmmn law. S takes pssessin f the land upn the criteria. A is dispssessed but des nt sue fr ver 15 years during which time S is in cntinuus pssessin. Here, X's claim t pssessin - the prir pssessin - is statute barred under the Limitatins f Actins Act. X can n lnger recver pssessin and by virtue f s28 Limitatins f Actins Act X's fee simple is extinguished. S's pssessin riginally wrngful and a trespass, has by limitatin f actin becme unchallengeable and rightful. The cmmn law plicy here is t keep land in circulatin and make peple actively prtect their titles. Since S has been in pssessin fr fifteen years, S has a pssessry title: a squatters title. Where P agrees t purchase such a title frm S n the grunds that S has barred X's claim, there will be a transfer f such title as S had by deed. The transfer will be expressed t P and P's heirs (a fee simple). Eventually, the interruptin f the chain f title by reasn f S's dispssessin f X will be lst in the mists f time and title in fee simple will prceed ut f P. Nte: this is under the ld system. Under the TS f registratin f title, registratin f a fee simple is indefeasible. Assuming a registered title, this bliterates prir pssessry claims and remves the need fr a chain f deeds. If X were a registered prprietr in fee simple under the TS, the title cannt simply be extinguished by S's dispssessin f X fr 15 years. TS principles require mre, as X's registered title is indefeasible and S's pssessin is NOT an exceptin t indefeasibility. S must apply t the Registrar General in prper frm and n the basis f having dispssessed X fr thirty years t deregister X as the actual wner in fee simple and register S in X's stead - see ss80(a)-80(i) RPA. In SA, title by adverse pssessin may nt be btained ver registered land except under the specific prvisins fr ding s that are set ut in TS legislatin. The "title by pssessin" must amunt t a sufficient case t justify and achieve registratin f a new registered wner having indefeasibility thereby. What this means, in regard t registered land as ppsed t land at cmmn law, is that pssessry disputes can nly ccur between tw persns neither f whm are registered wners. The winner will then be challengeable by the registered wner n matter what and regardless f time unless and until the winner achieves registratin in their wn right under ss80(a)-(i). Under the TS, the registered wner always has the right t pssessin until they chse t deal with it.

14 Pssessin itself is a legal prperty right embdying a direct relatinship between the pssessr and the land - a right in rem - gd against all the wrld except a persn with a better right t pssessin: a prir pssessr r freehld wner and persn claiming pssessin thrugh the wner. Anyne, even a trespasser, entering nt land and taking pssessin may assert their pssessin against later cmers, but is vulnerable until limitatin f actin t the claims f prir hlders. As registered wners under the TS, prir right hlders are abslutely prtected against unlawful pssessrs until deregistratin. Adverse pssessr can transfer land t anther persn and des nt necessarily need t use frmal cnveyancing mechanisms: Mulcahy v Curramre Pty Ltd Where pssessin f land is uninterrupted by the wner, the pssessr can acquire title at cmmn law. Remember, in SA the perid is 15 years uninterrupted use - Limitatins f Actins Act 1936 s4. Factual pssessin and Animus Pssidendi Factual and mental elements must be satisfied befre a claim fr adverse pssessin can be made: JA Pye Ltd v Graham. Mulcahy v Curramre - the requisite kind f pssessin that wuld cause the limitatin perid t cmmence is pssessin which is pen, nt secret; peaceful, nt by frce; and adverse, nt by cnsent f the true wner. Shaw v Garbutt - the requisite pssessin was pssessin that was actual, pen, cntinuus and exclusive. Factual pssessin 1. Open, nt secret Pssessin must be such that it wuld be nticed by a dcumentary wner, reasnably careful f his r her interests: Re Riley; RPA It reflects a plicy bjective that gives the true wner an pprtunity t discver the adverse pssessins and t take actin t bring it t an end befre the limitatin perid expires. 2. Peaceful, nt by frce The adverse pssessr (AP) is prhibited frm using frce in btaining and maintaining pssessin. Shaw v Garbutt - peaceable pssessin meant uninterrupted pssessin and the threat f frce may be a manifestatin f an intentin t exclude thers. It is therefre nt incnceivable that sme element f frce may be necessary in accessing land and threats f physical vilence may well be used t defend pssessin and warn ff thse intending t enter the adversely pssessed land. In cntrast - Bartlett v Ryan - Hamiltn J cnsidered that the extent f the plaintiff's fear f physical and verbal abuse frm the AP meant that the pssessin was nt peaceable. 3. Cntinuus and exclusive Need fr a successful AP t demnstrate a sufficient level f physical cntrl ver the land. The persn claiming AP must have been dealing with the land as an ccupying wner might have been expected t deal with it and must shw that n ne else has dne s - Pwell v McFarlane

15 Cadij Unmar v S Dn Manis Appu - grass grwing n land that was therwise unsuited t agricultural uses was harvested and sld. Held that the harvesting amunted t sufficient pssessin. Tecbild Ltd v Chamberlain - tethering pnies and allwing children t play n the land were held t be t trivial t cnstitute AP. Mnash City Cuncil v Melville - The adverse pssessrs (the Melville's), endrsed land wned by the cuncil that adjined their prperty. They clear it, planted it ut, gardened n it and used it t hst parties and ther recreatinal activities. These actins were held t be sufficient t amunt t AP. 4. Adverse t the true wner Pssessin cannt be adverse if it is with the permissin r cnsent f the true wner. E.g. a tenant under a lease cannt be an AP, nr can a persn wh uses land pursuant t a licence granted by the wner. JA Rye v Graham (English Case) G=AP. G tk pssessin f grazing land pursuant t a licence issued by the wner f the land. When the licence expired, negtiatins fr a new licence were nt fruitful and G was asked t vacate the land, G remained in AP fr enugh time t benefit frm the peratin f the relevant statute f limitatin s that the claim f the wner was barred. Animus Pssidendi A persn needs t be mre than a persistent trespasser t be an AP. Must be intentin t use the land fr their wn and t exclude all thers, including the true wner, s far as practicable and lawful. The enclsure f land that is the subject f an AP claim with fencing is ften referred t as clear prf f a physical act that demnstrates AP. Riley v Penttila Residential land subdivisin develpment that entitled wners f certain residential alltments t access, use and enjy an area f land wned by the develper, which was set aside as a reserve. The defendant had established a tennis curt n the reserve and enclsed it with a fence. The curt held that this did nt evince an unequivcal intentin t pssess the land. Instead, they held that the enclsure indicated an intentin t derive a special enjyment frm the rights f access ver the reserve. Fencing and vluntary payment f rights by the Adverse pssessr The enclsing f land with a fence is ften presented as prf f AP with the exceptin f Riley v Penttila. Whittlesea City Cuncil v Abbatangel Land wned be WCC; surrunded by land wned by A n three sides, the 4th side was a public rad. A used WCC's land fr keeping animals and cattle and hsting scial events. They maintained the land and erected a fence alng the bundary and the rad, incrprating it, in a practical sense, with their wn land. The Victria Supreme Curt held that the maintenance f the fence and the land manifested the requisite exercise f cntrl and exclusive pssessin.