Possession and adverse possession

• CL developed to protect possessory rights rather than ownership (due to doctrine of tenure)

  • Protects seisin (possession of land)

• Relativity of title: your title is only as good as the title of others is not

• Possesory title: a possessor of land gainsa right in land enforceable against the world at large except someone with a superior right to possession (documentary title holder, earlier possessor)

Principles of possessory title

• A person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with his/her possession, unless that person can demonstrate a superior title – ie doc title or earlier possessory title: Toohey J in Mabo

  • Crown only acquires radical title to all land on annexation: Mabo

• The defendant cannot defend the action by pleading jus tertii (ie, that a third party has a better right to possession than the plaintiff). The court decides the action between the parties to the dispute, not with reference to others.

• So we can have more than one right subsisting in property at same time, for example, in land, we can have:

  • Rights of documentary title holder

  • Rights of possessor of property

  • Rights of subsequent possessor of property

• At least until the limitation period runs, the documentary title holder will have best right but as between the others, the party with the prior right will win:

  • Unless there has been abandonment of that right; or

  • Unless subsequent possessor has possessed property for limitation period

Justifications for adverse possession

[2.83] The principle of limitation of actions and their rationale was stated in Marquis Colmondeley v Lord Clinton by Sir Thomas Plumer MR as being to avoid interminable legislation and uncertainty, ‘exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost’. The hardship will be less on a person who has never possessed the land and slept upon his right, than on one who has long been allowed to consider it his own.

Retrospective justifications (we don’t know what the original justification would be centuries ago)

First two relate to limitations

1. People should defend their rights within a relatively responsive time

2. It becomes more difficult to make a claim long after the dispute arises (however this is less of an issue under TS land; allowing Adverse possession may allow greater uncertainty as the register does not reflect the true state of affairs – could catch out purchasers)

3. Reducing risk for purchasers: eg if you purchase an estate in fee simple you don’t want people from years ago making a claim because they had some interest in land back then. But also see argument against this in second point directly above

4. More efficient use of the land (remember Posner’s justification for private property): if squatter makes better use of the land than a person who would let it go to waste, this is acceptable. Criticisms: presupposes efficiency should be...

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