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Week 3 Concept of Possession - Coggle Diagram

- - - - This right is good against all other except the true owner.
    - - Lord Denman CJ:There was no possession in law until the plaintiff had actual power over the fish.
        The wrongful or unjust actions of the defendant do not lead to the conclusion that the plaintiff had possession in law.
    - - The President (Sir Henry Duke); ‘A thing taken by a person of his own motion and for himself, and subject in his hands, or under his control, to the uses of which it is capable, is in that person’s possession.’
        In this case regarding submerged wrecks possession is commonly effected by mooring a buoy upon it.
    - - Grant v YYH Holdings Pty Ltd [2012] NSWCA 260
    - - Jus tertii
        
        the person asserting possession is not able to rely on the fact that a third party, who is not involved in the dispute to possession of property, may actually have a better right to possession than the party initiating the action for possession.
        
        can only be relied upon by the defending party in a possession action, where that party is actually in possession and that possession is with the consent of the party who in law has a better claim to possession
        
        Jeffries v The Great Western Railway Co (1856) 5 EI & BI 802; 119 ER 680
- - - - finder does not have absolute possession but does have a better right than all but the rightful owner
  - - - Council controlled the brooch because public access to the park did not include the activities pursued by Fletcher.
  - - - http://www.austlii.edu.au/au/journals/DeakinLRev/2000/10.pdf
- - - - Kiefel J.‘…title is not…automatically transferred to the purchasers on abandonment. It will pass where there is an act such as appropriation…’
        ‘Appropriation…simply means taking to oneself as one’s property. An intention to exclude others is in my view an exercise of control over the chattels…’
        
        The bales of hay were appropriated by the purchasers.
- - - - Land Title Act 1994 (Qld) Ss 185(1)(d); 98-108B.
    - - Relationship between possession and title: does possession give rise to presumptive title?
        The judge said that while possession is about control by a person over land, title is (at least in this case) ‘…the abstract bundle of rights associated with relationship of possession.’
      - Ejectment: relationship between possession and title
        In order to show a title which would defeat the defendant in possession, the plaintiff in ejectment had to prove a right of entry; the defendant could rely on possession…the plaintiff was put to proof of the strength of his or her title and could not rely on the weakness of the defendant’s title…The central issue…was what circumstances gave right of entry.’
        Possession gives no title which survives dispossession.
  - - - JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419
        
        A case which ultimately went on appeal to the Grand Chamber of the European Court of Human Rights and involved a potential conflict between the English law principle of adverse possession and an unauthorised deprivation of property as inconsistent with Art 1 of the European Convention on Human Rights 1950 Protocol 1.
      - Commonwealth of Australia does not have an equivalent to the European Convention on Human Rights 1950 but see Human Rights Act 2004 (Qld) ss 24,28 & Charter of Human Rights and Responsibilities Act 2006 (Vic) s7
    - - Adverse possession may be taken of part of a piece of land and this can be horizontal or vertical
    - - Whittlesea City Council v Abbatangelo (2009) ALR English High Court of Justice, Supreme Court of Victoria – Court of Appeal
        Abbatangelo had acquired title to a parcel of general law land by adverse possession as against Whittlesea City Council (WCC), the paper owner. WCC argued that the elements of adverse possession had not been satisfied.
        
        'Adverse possession' as used in the Limitation of Actions Act 1958 (Vic) relates to possession by a person in whose favour time runs and not the nature of that possession. Whether the paper owner realises that dispossession has occurred is not relevant;
        
        Factual possession requires a sufficient degree of physical custody and control;
        
        Factual possession is determined by the whole array of facts and circumstances including '...the nature, position and characteristics of the land, the uses that are available and the course of conduct which the owner might be expected to follow';
        
        The intention which the law is concerned with is not to own or acquire but to possess;
        
        Acts should be considered collectively;
        
        Statements by the alleged possessor should be viewed with caution;
        
        Mere use falling short of possession is not enough;
        
        The use to which the land is put by the adverse possessor does not need to be inconsistent with the paper owner’s present or future intended use; and
        
        Inconsistent use might be a factor though not required as indicative of factual possession.
        
        Decision
        In affirming the decision of the court below that the title of WCC had been extinguished by Abbatangelo's adverse possession the court made specific findings against the disclosed facts in relation to the 2 critical elements of adverse possession namely; factual possession and intention to possess.
    - - Limitation of Actions Act 1974 (Qld) ss 29, 35, 36, 38
      - Szew To Chun Keung v Jung Kwok Wai David [1997] 1 WLR 1232
    - - Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
        Bowen CJ made comments concerning the commencement and the running of the limitation period
        
        'An abandonment by one adverse possessor followed by a break in time when the land is not in possession of some person adversely to the true owner will...restore the true owner's title to its pristine force.'
        
        ● The possession which triggers the commencement of time running under the statute is possession which is open not secret, peaceful and not by force, and adverse and not by the consent of the true owner. Nevertheless, to have this effect the possession must be continuous.
        
        ● The effect of s 34 of the Limitation Act 1969 (NSW) [see equivalent provision of the Limitation of Actions Act 1974 (Qld)] is to extinguish title of the true owner completely; it does not merely render the right of re-entry unenforceable.
        
        ● In the case of a series of persons having adverse possession by successive transmission of the inchoate possessory title, where the statutory period has been met, the true owner's title will be extinguished.
        
        ● This will also be the result in the case of successive trespassers (not deriving from each other) where there has been continuous possession as between each of the successive trespassers.