Property Law - Lecture 2 - Possession Flashcards
What is the distinction between property rights about land vs property rights about other tangible things?
Land = Real remedies (the remedy is directed at the thing that is under dispute) - Possession court order is default remedy - Unique
Chattel = Usually no real remedies. Default remedy is damages unless unique chattel.
Exception = Lease - “Chattels real”
Describe how we can classify personal property.
- Choses in possession = Physical stuff
- Choses in action = Type of right you vindicate by going to court e.g. debt
a) Pure intangible - No physical existence at all e.g. copyright
b) Documentary intangible - An intangible item where the rights have become bound up in a written document e.g. cheque
Discuss classification of property by type of right.
- Full ownership – Instinctive meaning – Most comprehensive, totally unencumbered right in respect of a particular thing e.g. your wallet
- Trusteeship – Can own property but not allowed to use the property for their own purposes. Have an obligation to use the property for the benefit of some third party e.g. cow and cow’s milk
- Security right – We can use things that we own in order to provide collateral to somebody who is lending us money e.g. bank’s rights in a typical domestic mortgage
What are other rights connected to property?
Rights that are associated with controlling how property rights are used e.g. Tenant under a lease covenants, easements
– May be able to trade those rights separately
Discuss classification by right holder (counting the number of people who are entitled to the rights).
- Can have more than one person with interests in a property at the same time e.g. mortgage scenario, trustee
- Also possible for there to be co-ownership – Multiple people entitled to the same right in the same thing at the same time e.g. one loan but owed to two banks – Co-ownership rule
What is possession?
Physical control coupled with the intention to possess to the exclusion of others – I control access to the thing and I intend to exercise that right of control of access
- Direct possession and constructive possession e.g. Office contents and car and house – Key
What is relativity of title?
*Right now A is in possession of Blackacre and right now nobody is claiming to have a better right to possession of Blackacre than A
*Relative – All property comes with the risk that someone will claim to have a better right to possession
*No jus tertii claims
What is the rule of priority?
The older your claim to possession, the better your title to the land
What are the two elements of actual possession?
1.Intention to possess
2. Control
Name one positive and one negative constructive possession case.
Positive = Dublin Distillery v Doherty [1914] AC 823 (Wild animals e.g. cage a segull, shoot it)
Negative = Kearry v Pattinson [1939] 1 KB 471 (Beekeeping; bees escaped)
What are the 3 types of writ that grew out of the Norman conquest of England?
- Writ of right (against the crown)
- Writ of novel Desseisin (against another legal subject)
- Mort d’Ancestor (Successor to a title)
Explain the significance of the 3 writs?
Land ownership moving from being politically-based on conquest of land to being based on the legal rights of the parties concerned
What is the rule for possessory title to land itself? (Who can you sue?)
Do you have a better claim RELATIVE to the other party?
What constitutes land?
The land itself and structures permanently affixed to the land
What constitutes chattels?
Stuff not permanently affixed to the land but chattels can be made part of land
