Possession

Question 1

Two types of real property rights

Answer 1

Real property; chattels real.

Question 2

Types of personal property rights

Answer 2

Choses in possession; choses in action (pure intangibles and documentary intangibles).

Question 3

Sir Goode KC’s definition of property (2023)

Answer 3

“Subject to statute, property is anything of realisable commercial value.”

Question 4

Latin maxim concerning ownership in 3 dimensions

Answer 4

“His alone is his, even to heaven and hell.”

Question 5

To heaven (case law)

Answer 5

Bernstein v Skyviews.

Facts: sued for trespass when Skyviews took a photo of his estate from a plane.

Held: Griffiths J held that possession extended only to such height as was necessary for the orindary use and enjoyment of the land.

Question 6

To heaven (statute)

Answer 6

s.55 Air Navigation and Transport Act (ANTA) 1936.

No liability in trespass in lawful flight (min. 400m)

Question 7

To hell (case law)

Answer 7

Bocardo v Star Energy UK

Facts: defendants drilled for oile beneath the estate, 200m-600m depth. Oil is the possession of the crown.

Held: Lord Hope said that ownership at such a depth would be absurd. Damages of £1.

Question 8

To hell (statute)

Answer 8

S. 48 Planning and Development Act 2006.

Value of land 10m below surface of nil unless contrary proven.

Question 9

4 types of rights

Answer 9

1. Ownership
2. Trusteeship
3. Security interest (i.e. bank in a mortgage)
4. Other (easements, covenants).

Question 10

Principle of Jus Tertii

Answer 10

You cannot sue out someone else’s right, they must do it themselves.

Property law is adversarial.

Question 11

Two tests for factual possession

Answer 11

1. Physical control
2. Intention to possess

Question 12

Hume v Tennyson

Answer 12

Degree of control–usually necessary if there is control over entry or sufficient fencing.

Although D had erected fencing around a riparian area of land, P maintained sufficient ownership as fencing was erected with his consent.

Question 13

JA Pye (Oxford) Ltd v Graham

Answer 13

Intention–must exclude the world at large, including the paper title owner.

A squatter claimed title to the land by means of adverse possession. Maintianed sufficient intention: sought to exclude others from the enjoyment of the land, not to acquire the title.

Question 14

Bula v Crowley

Answer 14

Cannot adversely possess for a third party–not sufficient intention.

Question 15

Kearry v Pattinson

Answer 15

Beehive case. When the bees are back in a state of nature, the owner lost his property right to them. Converse of the Lockean principle of labour-induced ownerhsip.

Question 16

Re Moormac Developments Ltd

Answer 16

Crushed limestone spread on land was considered affixed to the land (thus not chattle) but Laffoy J.

Test: affixation and intention. Intention more important here.