Possession

Question 1

What is a difference between a real land dispute in courts and a personal property dispute?

Answer 1

A real land dispute can result in “real remedies” - like making someone give the land back to you. This is because the law regards all land as unique.

In a personal property suit a court will typically award damages and not usually require surrendering possession (unless item is unique).

Question 2

What are the two classes of intangibles and examples of each?

Answer 2

Pure intangibles: debt, copyrights
Documentary intangibles: a bank check

Question 3

What is a jus tertii claim? Do they exist in property law?

Answer 3

Jus tertii is the legal argument by which a person can defend a claim made against them by invoking the rights of a stranger to the dispute.

It does not exist in property law. The two parties in court are who the case is being decided for, but that doesn’t mean there is not someone out there with a better claim to that property. If they show up, the previous case winner is likely to lose.

Question 4

What is the difference between actual possession and constructive possession?

Answer 4

For example, if someone is holding a bag of illegal drugs in their hand, they would be considered to have actual possession of the drugs. Constructive possession, on the other hand, does not require direct physical control but involves having the ability and intention to exercise control over an object.

Question 5

Dublin Distillery v Doherty [1914]

Answer 5

An example of actual/constructive possession. The distillery wanted to repossess some whiskey they were asserting Doherty owned, but the Court determined he never gained constructive ownership rights over the whiskey. It had merely been pledged to him, but he had never taken actual possession (e.g. physical delivery) or constructive possession (a proper legal assignment of these goods).

Question 6

What is the rule of priority in land law?

Answer 6

The older your claim to possession, the better your title. Property claims are ranked in temporal order.

Question 7

Kearry v Pattinson [1939]

Answer 7

British case

Bees that left their hive for another’s property.

Nobody owns wild animals, but they can be “reduced into possession” by capture, killing, etc.

But once the animal (e.g. the bees) have left your sight, they have returned to a state of nature and are not yours.

Question 8

What is the writ of novel desseisin?

Answer 8

If someone forces you off your land, you can sue to get it back based on your older claim to the land.

Question 9

What is Mort d’Ancestor?

Answer 9

Suing for a claim in ownership because your ancestor previously owned the land.

This can arise in scenarios when someone buy’s someone else’s inherited land rights and then sues to gain ownership over a piece of property.

Question 10

What is a test to determine if something qualifies as a building and/or fixture? (and therefore is part of the land)

Answer 10

It has to be either:
1. Attached to the land by more than the force of gravity
OR
2. Placed with an objective intention that it become affixed to the land.

Question 11

Re: Moormac Developments Ltd [2013]

Answer 11

Irish law

“The rubble case”

Developers dumped a bunch of rubble on some land that was undergoing work. The owner of the land subsequently became insolvent and did not pay for the rubble. The rubble co. sued for recovery.

It was determined the rubble co did not own the rubble - it had been placed on the land with the objective intention that it became part of the land. Since owner had become insolvent the rubble, like the land, now belonged to the Bank.

Question 12

Elitestone v Morris [1997]

Answer 12

British case

“A house which cannot be moved without being destroyed cannot have been intended to be a chattel but must have been intended to form part of the land.”

Freeholders issued proceedings for possession against Mr Morris who occupied a bungalow on the freehold land. The bungalow was situated on top of concrete blocks but was not attached to them. The blocks were attached to the freehold land. Mr Morris sought a declaration that the chalet bungalow was land for the purposes of the Rent Act 1977 and, as such, he was entitled to the protections afforded to tenants under the statute.

Question 13

Maye v Revenue Commissioners [1986]

Answer 13

Irish law

Whether TV attenas attached to the top of houses were deemed to be fixtures. HIgh Court ruled that they were, both because of the “substantial means” by which they were affixed to the houses as well as “the purpose and intention with which they were erected.”

Question 14

Botham v TSB Bank plc (1997)

Answer 14

English law

A repossession case which looked to determine what inside a dwelling could be considered chattel vs a fixture.

Kitchen units and bathroom fittings, save for light fittings, were considered fixtures because they were firmly affixed to the land and were also in place so that the relevant rooms could be used for their intended purpose. Carpets and curtains were chattels because these were not sufficiently annexed to the land and could not be considered to be a permanent improvement to the building. Gas fires were chattels because, even though they were attached to the land, the attachment was not sufficient to cause them to be a fixture. White goods (e.g. stove and fridge) were chattels because, although they were required for the use of the kitchen, they were not sufficiently annexed or permanent enough to be considered a fixture

Question 15

Bernstein v Skyviews Ltd [1977]

Answer 15

UK law

Skyviews and General Ltd (S) took an aerial photograph a number of houses, including Coppings Farm, Bernstein’s (B) country home. S then purported to sell the photograph to B. B claimed damages for trespass onto his airspace and, or alternatively, invasion of privacy for entering the air space above his property and taking the photograph without his consent.

Was there trespass?

An owner of land has rights in the air space above his land only to such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it. B had no right to privacy in airspace and accordingly there had been no infringement of B’s rights in the airspace above his property.

“Whoever owns the soil it is theirs up to heaven and down to hell” cannot be taken too literally for air rights, as then when a satelitte passed through their airspace it would be trespassing too.

Question 16

Bocardo SA v Star Energy UK Onshore [2010]

Answer 16

UK law

Rich guy was mad an energy company was drilling on a small part of his land, many miles below the surface. Court found there was technically a trespass, but awarded damages of 1,000 pounds because of the technical nature of the claim and because the plaintiff was not at all impacted in the use/enjoyment of his land.

Question 17

What is the difference in oil/gas deposits in Ireland vs. the UK?

Answer 17

In the UK such deposits belong to the Crown.
In Ireland they do not belong to the state.

Question 18

Elwes v Brigg (1886)

Answer 18

UK law

A prehistoric boat was found by a tenant six feet below the surface of the land. The court held that the boat belonged to the land owner.

“He was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. . . . The plaintiff then, being thus in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established; it had for centuries been lost or barred . . . The plaintiff, then, had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in the circumstances, that the plaintiff was not aware of the existence of the boat.”

Question 19

Armory v Delamire (1722)

Answer 19

UK law

Chimney sweep who finds jewel in chimney and then takes it to jeweler for evaluation. Jeweler is a jerk and won’t give it back. Who owns it? Chimney sweep does!

The priority of rights to possession says that a finder has better title to property that he or she finds over everyone except the true owner,

Question 20

Hanna v Peel [1945]

Answer 20

UK law

Plaintiff, who was a soldier staying in the house owned (but not occupied) by Defendant, found a brooch and then gave the brooch to the police who later, after not finding the rightful owner, gave the brooch to Defendant, who then sold the brooch.

While the defendant might have had a claim if they had ever occupied the house, in this instance they had never spent any time in the house. As such, the brooch was considered truly “lost” and the person finding it had a better claim.

Has the property owner made plans to manifest control?

Question 21

Parker v British Airways Board [1982]

Answer 21

British case

Business traveler finds expensive brooch on the ground in a British Airways lounge. Turns it in, telling British Airways if no one comes to claim it in six months, he wants it back. British Airways sells the brooch after six months, keeping the proceeds.

Has the property owner made plans to manifest control?

While the court conceded that things in the lounge that are not under direct control of passengers are the property of BA (per Elwes v Brigg) and that BA controlled access to the lounge, Court said BA did not demonstrate it was in “total control” of all chattel in the lounge. Ruled in favor of the plaintiff (passenger). Hard to understand what BA could have done differently to win this case “short of building a vault.”

Question 22

AG of the Duchy of Lancaster v Overton Farms [1982]

Answer 22

British case

Coins were found on Overton Farms and brought to a museum for inspection. Museum asserted they belonged to the Crown under treasure trove doctrine.

The law of treasure trove does not apply to any metal other than gold and silver and, secondly, that a treasure trove object must contain a ‘substantial’ amount of gold or silver. (The coins contained less than 5% silver.) Court ruled in favor of farmer.

Question 23

Attorney General v Trustees of the British Museum [1903]

Answer 23

British case

Concerned the “Broighter Hoard” consisting of a collection of objects, including gold model boat and a gold
torque, now in the National Museum of Ireland. The objects were turned up by a farmer when ploughing his
field. The objects made their way into the hands of an antiquary who sold them to the British Museum. The
Royal Irish Academy, to whom the prerogative of treasure trove has been transferred, claimed the hoard as
treasure trove. It was claimed by the British Museum that they had been buried without any intention of
recovery (given place of burial).

Judge wasn’t convinced and said if the objects found were of gold and silver  presumption of treasure
trove  those who denied this had to prove that they were not, British Museum failed to rebut
presumption.

Question 24

Webb v Ireland [1988]

Answer 24

Irish treasure trove case. Court relied on Art 5 in “results oriented judging.”

State has a right to archeological objects.

Led to the Historical and Archaeological and Heritage and Misc Prov Act 2023​. Court and legislation has made clear any rewards for finding treasure trove in Ireland are discretionary only.

Question 25

What can be said of property claims for items found on the surface of the land vs. items found below the surface?

Answer 25

When things are found above the surface of the land, it is less likely that the owner of the land will be able to show
both possession and an intention to possess

Question 26

An example of actual/constructive possession. The distillery wanted to repossess some whiskey they were asserting defendant owned, but the Court determined he never gained constructive ownership rights over the whiskey. It had merely been pledged to him, but he had never taken actual possession (e.g. physical delivery) or constructive possession (a proper legal assignment of these goods).

Answer 26

Dublin Distillery v Doherty [1914]

Question 27

British case

Bees that left their hive for another’s property.

Nobody owns wild animals, but they can be “reduced into possession” by capture, killing, etc.

But once the animal (e.g. the bees) have left your sight, they have returned to a state of nature and are not yours.

Answer 27

Kearry v Pattinson [1939]

Question 28

Irish law

“The rubble case”

Developers dumped a bunch of rubble on some land that was undergoing work. The owner of the land subsequently became insolvent and did not pay for the rubble. The rubble co. sued for recovery.

It was determined the rubble co did not own the rubble - it had been placed on the land with the objective intention that it became part of the land. Since owner had become insolvent the rubble, like the land, now belonged to the Bank.

Answer 28

Re: Moormac Developments Ltd [2013]

Question 29

British case

“A house which cannot be moved without being destroyed cannot have been intended to be a chattel but must have been intended to form part of the land.”

Freeholders issued proceedings for possession against Mr Morris who occupied a bungalow on the freehold land. The bungalow was situated on top of concrete blocks but was not attached to them. The blocks were attached to the freehold land. Mr Morris sought a declaration that the chalet bungalow was land for the purposes of the Rent Act 1977 and, as such, he was entitled to the protections afforded to tenants under the statute.

Answer 29

Elitestone v Morris [1997]

Question 30

Irish law

Whether TV attenas attached to the top of houses were deemed to be fixtures. HIgh Court ruled that they were, both because of the “substantial means” by which they were affixed to the houses as well as “the purpose and intention with which they were erected.”

Answer 30

Maye v Revenue Commissioners [1986]

Question 31

English law

A repossession case which looked to determine what inside a dwelling could be considered chattel vs a fixture.

Kitchen units and bathroom fittings, save for light fittings, were considered fixtures because they were firmly affixed to the land and were also in place so that the relevant rooms could be used for their intended purpose. Carpets and curtains were chattels because these were not sufficiently annexed to the land and could not be considered to be a permanent improvement to the building. Gas fires were chattels because, even though they were attached to the land, the attachment was not sufficient to cause them to be a fixture. White goods (e.g. stove and fridge) were chattels because, although they were required for the use of the kitchen, they were not sufficiently annexed or permanent enough to be considered a fixture

Answer 31

Botham v TSB Bank plc (1997)

Question 32

UK law

The defendant took an aerial photograph a number of houses, including Coppings Farm, the plaintiff’s country home. The defendant then purported to sell the photograph to the plaintiff. the plaintiff claimed damages for trespass onto his airspace and, or alternatively, invasion of privacy for entering the air space above his property and taking the photograph without his consent.

Was there trespass?

An owner of land has rights in the air space above his land only to such a height as is necessary for the ordinary use and enjoyment of his land and the structures upon it. the plaintiff had no right to privacy in airspace and accordingly there had been no infringement of B’s rights in the airspace above his property.

“Whoever owns the soil it is theirs up to heaven and down to hell” cannot be taken too literally for air rights, as then when a satelitte passed through their airspace it would be trespassing too.

Answer 32

Bernstein v Skyviews Ltd [1977]

Question 33

UK law

Rich guy was mad an energy company was drilling on a small part of his land, many miles below the surface. Court found there was technically a trespass, but awarded damages of 1,000 pounds because of the technical nature of the claim and because the plaintiff was not at all impacted in the use/enjoyment of his land.

Answer 33

Bocardo SA v Star Energy UK Onshore [2010]

Question 34

In the UK such deposits belong to the Crown.
In Ireland they do not belong to the state.

Answer 34

What is the difference in oil/gas deposits in Ireland vs. the UK?

Question 35

UK law

A prehistoric boat was found by a tenant six feet below the surface of the land. The court held that the boat belonged to the land owner.

“He was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. . . . The plaintiff then, being thus in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established; it had for centuries been lost or barred . . . The plaintiff, then, had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in the circumstances, that the plaintiff was not aware of the existence of the boat.”

Answer 35

Elwes v Brigg (1886)

Question 36

UK law

Chimney sweep who finds jewel in chimney and then takes it to jeweler for evaluation. Jeweler is a jerk and won’t give it back. Who owns it? Chimney sweep does!

The priority of rights to possession says that a finder has better title to property that he or she finds over everyone except the true owner,

Answer 36

Armory v Delamire (1722)

Question 37

UK law

Plaintiff, who was a soldier staying in the house owned (but not occupied) by Defendant, found a brooch and then gave the brooch to the police who later, after not finding the rightful owner, gave the brooch to Defendant, who then sold the brooch.

While the defendant might have had a claim if they had ever occupied the house, in this instance they had never spent any time in the house. As such, the brooch was considered truly “lost” and the person finding it had a better claim.

Answer 37

Hanna v Peel [1945]

Question 38

British case

Business traveler finds expensive brooch on the ground in a British Airways lounge. Turns it in, telling British Airways if no one comes to claim it in six months, he wants it back. British Airways sells the brooch after six months, keeping the proceeds.

While the court conceded that things in the lounge that are not under direct control of passengers are the property of BA (per Elwes v Brigg) and that BA controlled access to the lounge, Court said BA did not demonstrate it was in “total control” of all chattel in the lounge. Ruled in favor of the plaintiff (passenger). Hard to understand what BA could have done differently to win this case “short of building a vault.”

Answer 38

Parker v British Airways Board [1982]

Question 39

British case

Coins were found on the defendant’s property and brought to a museum for inspection. Museum asserted they belonged to the Crown under treasure trove doctrine.

The law of treasure trove does not apply to any metal other than gold and silver and, secondly, that a treasure trove object must contain a ‘substantial’ amount of gold or silver. (The coins contained less than 5% silver.) Court ruled in favor of farmer.

Answer 39

AG of the Duchy of Lancaster v Overton Farms [1982]

Question 40

British case

Concerned the “Broighter Hoard” consisting of a collection of objects, including gold model boat and a gold
torque, now in the National Museum of Ireland. The objects were turned up by a farmer when ploughing his
field. The objects made their way into the hands of an antiquary who sold them to the British Museum. The
Royal Irish Academy, to whom the prerogative of treasure trove has been transferred, claimed the hoard as
treasure trove. It was claimed by the British Museum that they had been buried without any intention of
recovery (given place of burial).

Judge wasn’t convinced and said if the objects found were of gold and silver  presumption of treasure
trove  those who denied this had to prove that they were not, British Museum failed to rebut
presumption.

Answer 40

Attorney General v Trustees of the British Museum [1903]

Question 41

Irish treasure trove case. Court relied on Art 5 in “results oriented judging.”

Led to the Historical and Archaeological and Heritage and Misc Prov Act 2023​. Court and legislation has made clear any rewards for finding treasure trove in Ireland are discretionary only.

Answer 41

Webb v Ireland [1988]

Question 42

Moore v Regents of the University of California

Answer 42

California Supreme Court Case

In 1976, John Moore was treated for hairy cell leukemia by physician David Golde, a cancer researcher at the UCLA Medical Center. Moore’s cancer cells were later developed into a cell line that was commercialized by Golde and UCLA.

The court found that Moore had no property rights to his discarded cells or to any profits made from them. However, the research physician had an obligation to reveal his financial interest in the materials that were harvested from Moore, who could thus bring a claim for any injury that he sustained by the physician’s failure to disclose his interests

Question 43

R v Kelly

Answer 43

British Case

The first defendant had access to the Royal College of Surgeons to take drawings of anatomical specimens. The second defendant worked at the college. X asked Y to remove a number of human body parts from the college. The body parts were then taken to X’s home where X made casts from them. The body parts were ultimately buried in a field near X’s home.

If the human body is not property, how could it be stolen?

When a person applies lawful skill to a human body or part thereof which is in his lawful possession it acquires usefulness which distinguishes it from an interred corpse and that person therefore acquires a right to retain possession of it.

Question 44

Williams v Williams (1882)

Answer 44

British Case

Mistress asking to be reimbursed for cremation of body, as the person who died had left instructions in a codicil of the will as to what she was supposed to do with his body.

As a body is not property, it cannot be willed to anyone. It is the executors’ duty to bury it, and they have the right to possession of it in the meantime.

Question 45

University Hospital Lewisham NHS Trust v Hamuth [2006]

Answer 45

Nurse meddled with patient (potential elder abuse). After death, there was argument over who should have control of the body. Court ruled “In the present case, the Claimant being in lawful possession of the body and there being no way of resolving the dispute as to the entitlement of the First Defendant to act as executor within an acceptable time period, it seems to me that the decision as to the appropriate arrangements for the disposal of the body must be left to the Claimant as the person currently in lawful
possession of the body.”

Said it was hospital’s–seemed to ignore Williams v Williams as authority that executor gets the body.

Question 46

California Supreme Court Case

In 1976, plaintiff was treated for hairy cell leukemia by physician David Golde, a cancer researcher at the UCLA Medical Center. Plaintiff’s cancer cells were later developed into a cell line that was commercialized by Golde and UCLA.

The court found that plaintiff had no property rights to his discarded cells or to any profits made from them. However, the research physician had an obligation to reveal his financial interest in the materials that were harvested from the plaintiff, who could thus bring a claim for any injury that he sustained by the physician’s failure to disclose his interests

Answer 46

Moore v Regents of the University of California

Question 47

British Case

The first defendant (K) had access to the Royal College of Surgeons to take drawings of anatomical specimens. The second defendant (L) worked at the college. K asked L to remove a number of human body parts from the college. The body parts were then taken to K’s home where K made casts from them. The body parts were ultimately buried in a field near K’s home.

If the human body is not property, how could it be stolen?

When a person applies lawful skill to a human body or part thereof which is in his lawful possession it acquires usefulness which distinguishes it from an interred corpse and that person therefore acquires a right to retain possession of it.

Answer 47

R v Kelly

Question 48

British Case

Mistress asking to be reimbursed for cremation of body, as the person who died had left instructions in a codicil of the will as to what she was supposed to do with his body.

As a body is not property, it cannot be willed to anyone. It is the executors’ duty to bury it, and they have the right to possession of it in the meantime.

Answer 48

Williams v Williams (1882)

Question 49

Nurse meddled with patient (potential elder abuse). After death, there was argument over who should have control of the body. Court ruled “In the present case, the Claimant being in lawful possession of the body and there being no way of resolving the dispute as to the entitlement of the First Defendant to act as executor within an acceptable time period, it seems to me that the decision as to the appropriate arrangements for the disposal of the body must be left to the Claimant as the person currently in lawful
possession of the body.”

Said it was hospital’s–seemed to ignore Williams v Williams as authority that executor gets the body.

Answer 49

University Hospital Lewisham NHS Trust v Hamuth [2006]

Question 50

Victoria Park Racing v Taylor (1937)

Answer 50

Australian case

The plaintiff owned a racing track in south Sydney, which charged admissions to people who placed bets on the races. The racecourse was surrounded by a very high fence. The defendant, who had a house and front yard adjacent to the course, allowed the radio broadcasting station 2UW to construct a five-metre high platform on scaffolding from which someone could see into the course and broadcast – with the help of binoculars – the races and information about horses posted at the ground, which facilitated unregulated off-track betting. Attendance at the ground plummeted.

The plaintiff applied to the Supreme Court of New South Wales for an injunction against the defendant on the footing of nuisance and breach of copyright. Privacy and non-natural use of property were also cited as grounds. It was common ground that the mere construction and use of the raised platform constituted no breach of building or zoning regulations or of the betting and gaming legislation or indeed of the regulations governing broadcasting.

In a 3–2 decision, the appeal was dismissed, as no wrong was committed that was known to the law.

“There is no property in spectacle.”

Question 51

Australian case

The plaintiff owned a racing track in south Sydney, which charged admissions to people who placed bets on the races. The racecourse was surrounded by a very high fence. The defendant, who had a house and front yard adjacent to the course, allowed the radio broadcasting station 2UW to construct a five-metre high platform on scaffolding from which someone could see into the course and broadcast – with the help of binoculars – the races and information about horses posted at the ground, which facilitated unregulated off-track betting. Attendance at the ground plummeted.

The plaintiff applied to the Supreme Court of New South Wales for an injunction against the defendant on the footing of nuisance and breach of copyright. Privacy and non-natural use of property were also cited as grounds. It was common ground that the mere construction and use of the raised platform constituted no breach of building or zoning regulations or of the betting and gaming legislation or indeed of the regulations governing broadcasting.

In a 3–2 decision, the appeal was dismissed, as no wrong was committed that was known to the law.

“There is no property in spectacle.”

Answer 51

Victoria Park Racing v Taylor (1937)