Head 9: Possession Flashcards
When is there a presumption of ownership?
Possession of corporeal moveables.
What two things does possession produce by itself?
There are only two things which possession produces by itself [i.e. not in combination with another fact.]:
- For corporeal moveables, the person who possesses is presumed [The reason is that there is no register, so the law tries to help the difficult evidential question.] to be the owner.
- If you are in possession then you cannot lawfully be dispossessed [So for example if someone steals your car and you find someone sitting in it two weeks later. The law will not allow the owner to forceably remove the thief from the car. The owner could ask the thief to give it back (i.e. by consent) or failing that then the owner would have to go to court to get the car back.
So EVEN THIEFS CAN KEEP POSSESSION UNLESS THERE IS A COURT ORDER AGAINST THEM OR THEY CONSENT TO GIVING THE PROPERTY BACK.
If you do forceably re-take possession of stolen goods then you have committed a delict known as ‘spuilzie’. The person disposed, even if a thief, can go to court to have their possession restored (in the case of theft it is very unlikely that a thief would go to court). NB spuilzie is only about actual possession - it is not about who is entitled to possess.
In the modern law spuilzie has practically disappeared.
Does possession alone confer any rights? When does possession confer rights?
Fact of possession alone confers no rights, other than right, founded on spuilzie (ejection), not to be dispossessed without consent or court order.
But fact of possession in combination with other facts confers rights: eg occupatio; acquisition of real rights of lease and servitude; positive prescription.
What does acquisition of possession require?
Acquisition of possession requires both an act of the body (corpus) and an act of the mind (animus).
1) Act of the body
⁃ In order to possess something you must take physical control.
⁃ To take physical control of large objects / land as long as the possessor possesses part of it then they possess the whole thing, e.g. keys
2) Act of the mind
⁃ There must be intention (a) to exercise control (b) for one’s self.
Who possesses in “container” cases?
[ Where a person possesses a container without knowing what is inside it. A house is an example of a container.]’
In “container” cases the possessor of the container object is also held to possess everything inside it, even if he doesn’t know what they are. However you must be in control of the container:
⁃ Parker v British Airways
- Harris v Abbey National
What happened in the case of Parker v British Airways?
A man walking through heathrow and noticed a bracelet on the floor and picked it up. There was a dispute as to whether the man who found it or British Airways who controlled the terminal where it was found, possessed the bracelet. British Airways argued that since they possess the terminal they also possess everything inside the building, on the container basis. It was held that the container principle didn’t apply because British Airways were not in full control of possession of the terminal.
What happened in the case of Harris v Abbey National ?
The pursuer lived with his girlfriend. He moved out of the house and left vinyl records in a cupboard. The house was repossessed by the defendants and they threw all the remaining items out into a skip - so the pursuer lost his vinyl. He sued for damages. One of the questions was whether the defendants were in possession of the records? Applying the container principle the court held that they were in possession since they were in possession of the house and had full control.
What is the requirement for intention in possession?
For the second requirement (that the intention to exercise control must be for oneself) there is a key difference between having physical control and having possession.
• If you take a jacket to a dry cleaners, they will have physical control but NOT possession because they do not have the intention to exercise control for one’s self. This type of physical control is known as custody.
• The possessor is the person for whom the property is held in custody (an example of civil possession)
• Where one holds only for someone else this is custody and not possession.
What is civil possession?
This is where you possess through the corpus of another. This extends the idea of possession beyond its normal meaning. Civil possession has the same legal effect as natural possession.
Examples include: ⁃ A) Warehouseman A [He has custody.] holds good belonging to B
⁃ B) Tenant C lives in house belonging to landlord D [The landlord has civil possession through the tenant. However, the tenant is considered to possess BOTH FOR THE LANDLORD AND ALSO FOR THEMSELVES.
So in Example B there are two possessors (tenant - natural possession, landlord - civil possession)]
How do you maintain possession? What is this called? When do you lose possession?
Once you have established possession, you continue to possess even when you are not present. You are regarded as possessing ‘animo solo’ (by intention alone).
However, if while you are not physically present someone seizes possession from you then you lose possession.
