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Possession and Adverse Possession: Understanding the Differences and Implications, Exercises of Law

University of GlasgowLaw

The concepts of possession and adverse possession in property law. Possession refers to the factual control of land, which can confer rights against anyone without a better claim. Adverse possession, on the other hand, is a statutory defense that allows a person to acquire a right to defend themselves against the real owner if they have been in possession for a sufficient period and with the required intention. Various aspects of these concepts, including the difference between possessory and proprietary titles, the importance of intention and factual possession, and the policy rationales behind adverse possession.

Typology: Exercises

2021/2022

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POSSESSION
Possession encompasses:
- Possession of land for any period of time is prima facie evidence of a right to hold the
land
- Possession may itself confer a right which is good against anyone who cannot show a
better right to possession
- Possession, for a period of time as dictated by law may confer an interest in land upon
the possessor
o Here the Statue of Limitations extinguishes the right of a documentary title
holder after a certain period of time regardless of how the possessor came to
possess the land
o Under the doctrine of adverse possession, trespass may amount to dispossession
of the documentary title holder
POSSESSORY TITLE
- purely factual
- based on fact of possession rather than documentary proof of title
- law generally protected possessory title, this is because person who found or discovered
property should have a right to keep that property unless/until the real owner reclaimed it.
Enforceability of Possessory Title
- different to proprietary title primarily re: scope of enforceability
- ‘relativity of title principle’ possessory title not an in rem title because it is not enforceable
against the rest of the world the tile of the true owner will defeat that of the possessor.
- Proprietary title is in rem and therefore stronger than possessory title
o Only real exception to this is adverse possession which arises where a possessor has
endured for such a pd of time and it is coupled with a statutory limitation of actions defence
which prevents the paper title holder from defeating the rights of the adverse possession
Asher v Whitlock (1865)
Thomas Williamson held possession over a cottage which he built on waste land within a
manor. Died – passed on this land to his wife until she remarried or died and then to daughter
Lucy Williamson. Wife remarried. New partner (defendant) moved into house. Interest of wife
ceased when she got remarried. Passed to Lucy daughter. Wife and daughter died. Defendant
stayed in house. Heir at law to lucy’s possessory title the plaintiff argued that he had a better
possessory right to the land than the defendant who was in actual physical possession.
Held:
pf3
pf4

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POSSESSION

Possession encompasses:

  • Possession of land for any period of time is prima facie evidence of a right to hold the land
  • Possession may itself confer a right which is good against anyone who cannot show a better right to possession
  • Possession, for a period of time as dictated by law may confer an interest in land upon the possessor o Here the Statue of Limitations extinguishes the right of a documentary title holder after a certain period of time regardless of how the possessor came to possess the land o Under the doctrine of adverse possession, trespass may amount to dispossession of the documentary title holder

POSSESSORY TITLE

  • purely factual
  • based on fact of possession rather than documentary proof of title
  • law generally protected possessory title, this is because person who found or discovered property should have a right to keep that property unless/until the real owner reclaimed it.

Enforceability of Possessory Title

  • different to proprietary title primarily re: scope of enforceability
  • ‘ relativity of title principle’ possessory title not an in rem title because it is not enforceable against the rest of the world  the tile of the true owner will defeat that of the possessor.
  • Proprietary title is in rem and therefore stronger than possessory title o Only real exception to this is adverse possession which arises where a possessor has endured for such a pd of time and it is coupled with a statutory limitation of actions defence which prevents the paper title holder from defeating the rights of the adverse possession

Asher v Whitlock (1865)

Thomas Williamson held possession over a cottage which he built on waste land within a manor. Died – passed on this land to his wife until she remarried or died and then to daughter Lucy Williamson. Wife remarried. New partner (defendant) moved into house. Interest of wife ceased when she got remarried. Passed to Lucy daughter. Wife and daughter died. Defendant stayed in house. Heir at law to lucy’s possessory title the plaintiff argued that he had a better possessory right to the land than the defendant who was in actual physical possession.

Held:

  • Possessory title capable of being passed on.
  • Inherited right that the heir at law acquired defeated the subsequent possessory title of the defendant
  • PRIOR POSSESSORY TITLE WILL DEFEAT A SUBSEQUENT POSSESORY TITLE.

Perry v Clissold

  • A possessory title holder of land compulsorily acquired = entitled to obtain compensation
  • Possessory title confers an interest capable of being alienated and if land that relates to such a title is compulsorily acquired no reason why holder shouldn’t be compensated.
  • If possession confers a good title, enforceable against all the world except for the rightful owner, where such a title is resumed by the crown compensation should be available.

ADVERSE POSSESSION

Adverse possession is a statutory defence available only to land interests whereby a person who has been in possession of land for a sufficient duration of time acquires not only a possessory title but also a right to defend himself against an action by the real owner.

Defence arises where there is a requisite degree of

  1. FACTUAL POSSESSION: that has occurred for the limitation period, possessed it in a manner akin to true owner
  2. INTENTION: the possessor satisfies the intention test

“If the law is going to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess: Whittlesea City Council v Abbatangelo [2009]

AP is a certain type of land possession where occupation by the possessor has endured for so long and is of such a character that it generates a limitation of actions defence in favour of the possessor

Important points:

Intention to exclude world at large including true owner – means an intention to exercise exclusive control rather than a conscious effort to exclude the true owner Ocean Estates v Pinder [1969]  Enclosure (i.e building a fence) ‘strongest possible evidence of AP’ Seddon v Smith (1877)  Periods of possession may be aggregated as long as there is no gap in possession.

NATURE OF ADVERSE POSSESSION

To establish adverse possession, one must prove:

1. Limitation period - i.e endured for the requisite period of time a. Vic time period if 15 years Limitation of Actions Act 1958(Vic), s 2. Factual possession o Sufficient degree of custody and control o Present control of ones own behalf to exclusion of others o Nature of land and manner in which land is commonly used 3. Intention to possess ( animus possidendi ) o Without consent or permission of owner o Intention to occupy and use land as ones own o Intention may be deduced from physical acts

Note: AP not enforceable during period a title holder does not have the right to possession. This includes:

  • Future interests o Remainder o Reversion  For these title is vested but not deferred until a later date

Rationale: AP only enforceable against documentary title holders who fail to enforce or ‘sleep’ on their rights, not those who are prevented from doing so because they hold a future interest (i.e. future right to possession not yet vested)

LIMITATION PERIOD

15 years of AP in Vic (& SA) (12 yrs in all other states) set out in S8 Limitation of Actions Act 1958 (Vic)

‘No action shall be bought against any person to recover land after the expiration of 15 years from the date on which the right of action accrued to him or, if first accrued to some person through whom he claims to that person: Provided that if the right of action first accrued to the Crown the action may be bought at any time before the expiration of fifteen years from the date on which the right of action accrued to some person other than the Crown”