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PROPERTY LAW – “SEMINAR” 3.1

PROPERTY LAW – “SEMINAR” 3.1

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PROPERTY LAW – “SEMINAR” 3.1 (DRAFT 1) POSSESSION IN LAW Tip for exam: As this course focuses on common law a lot, prepare a case list, where they have key principles and certain facts of the case. Introductory concepts Concept of possession fundamental to development of Law of Property o It isn’t the same as ownership, but it is one of the key principles to ownership o Ownership generally leads to a right to possession. o However, possession does not work well with intangible objects, thus have limitations. It works well with chattels or property though. o Meant to protect possession Law developed remedies to protect right to possession (eg: Common law action of ejectment – An owner or tenant of land has the ability to apply to the supreme court for a way to an action of possession of a particular piece of land if they can show that they have the stronger right to land.) o Ejectment: Someone who claims a better right to property and tries to eject another who has come along to take possession. Distinguish “possession” from “ownership” (eg: You may possess rental flat but don’t own it. Ownership usually includes right to possess Intangible (share, copyright, owned but not possessed. What is possession? Requires: Custody or control of that thing (can be physical), AND An intent ion to possess that thing and treat it as their own (animus possidendi) In context of land, it means: o Substantial occupation of area of land, AND o The intention to exclude all others from that land for a particular period of time, including those that may have a better claim to that piece of land. Can acquire possession in a number of ways, such as: o Buying land so it can be transferred to a person from someone in response to one making a payment for it.
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o Gifted to a person (without consideration). o Take possession of that land by physical control, so intangible things such as copyright cannot be possessed (held by someone). Also, possession and ownership is not the same thing, as one can possession something, but not own it (Eg: Rental property). o However with ownership comes the right to possess as well, thus being an implied right. For property if it is well shown that one possesses it (Eg: With fences around the property) then one can leave the property, but still claiming possession over it. Possession in law - Control May be determined in two ways: o Context o Degree – A factual influence Ask can the person control access to the thing, (Eg: House, boat, car, jewellery) which shows how much one has control over something. Possession in law – Amimus Possidendi (mental element) There must be a clear intention to possess that thing, but that intention does not necessarily have to be permanent, but shown to be possessed in a certain period of time.
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