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PROPERTY LAW – LECTURE 3 (DRAFT 1) POSSESSION IN LAW Table of Contents Introductory concepts o Ownership, possession, custody Possession of goods o Elements of possession and how they vary o Chattels o Finders, finding on belhalf of another, principles governing finders Possession of land : Rights flowing from possession o Relativeity of title o Jus tertii and successors in title Difficulties with possession Introductory concepts Ownership – Ownership encompasses the liberal triad of use, exclusivity and disposition. It is the largest bundle of rights a person may possess. o Whoever has these three rights has the greatest rights, thus is the owner of that thing. o Ownership is to be distinguished from possession. Possession – Possession is merely one of the bundles of rights that constitute private property and ultimately ownership. It can give rights against third parties. Possession is gradually only one of the rights in the bundle of rights, thus is weaker than ownership. Custody – Distinct from possession. For example, an employee holding goods belonging to the employer is generally regarded as having custody only, with legal possession remaining in the employer. Possession – Possession is very strong; rather more than 9/10 of the law. Possession: Elements English law has never worked out a completely logical and exhaustive definition of possession that applies in all circumstances, thus we do not have that certainty for
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possession, but we have elements to determine possession instead, which may vary in what the thing is and the context of what it’s claimed. Possession in law – Elements of possession o Factum (fact) – having physical control over a thing. Among the relevant considerations are: Whether the acts of control can be seen as sufficient to exclude others. Thus whether one has done enough to exclude others. The kind of dominion that is possible from a practical point of view, which is in relation to the context of the case. o Animus possidendi (mental element) – Having intent to possess something. An intention to possess may be found even without the holder having that high degree of awareness composed of complete subjective knowledge and an absolute resolve to exert exclusive control. Eg: If one is to take possession of a box, they take possession of that box and its contents in the box even if that person does not know what is in the box. Example cases: Chattels Young v Hichens (1844) QB o Young was a commercial fisherman who spread a net of 140 fathoms in open water. When the net was almost closed, Hichens went through the gap, spread his net and caught the trapped fish from young’s net. o Issue: Was the physical element for possession satisfied?
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