#7347 - Possession Of Land - Property, Equity and Trusts 1

Even though modern law evolved from complex actions (seisin etc.) the authorities nowadays support the view that possession of land (like goods) creates an interest in the possessor enforceable against the world except someone with a superior right of possession
- In fact in early times no distinction was drawn between seisin and possession (Maitland, The Seisin of Chattels)
The development of the common law:
- Seisin protects against all the world; even those who wrongfully dispossess the owner – the owner must regain possession within 4 days else the dispossessor acquires possessory assizes that can be exercised against even the owner
  - The owner must rely on a writ of right which is a cumbersome, complex process
- Writs of entry then replaced the possessory assizes – the dispossessor is not long protected against the owner. Instead the person dispossessed, loses seisin but gains a right of entry (right to regain seisin without being subjected to an action). This right could not be alienated.
- Seisin becomes distinct from possession – to be seised one must be in possession as the holder of a freehold estate in the land and thus able to use the real actions.
  - Freehold estates and estates lesser than freeholds were used to distinguish interests – leaseholds fell into the latter and did not have the benefit of real actions.
  - While a freeholder retained seisin whilst not in possession, the leaseholder could be dispossessed with no entitlement to recover (except damages). Only the freeholder who has been disseised can recover
- A fiction of the common law trespass de ejectione firmae (ejectment) developed allowing a freeholder to recover even though the dispossessor had seisin. Ejectment soon replaced the real actions with fictitious leases behind handed to people to engineer actions that would utilize the speedy action of ejectment rather than the now complex real actions.

In Commonwealth v Anderson [1960] HCA it was argued that ejectment was inconsistent with the character of the crown (Dixon J summarizes the argument – Crown is a lessor complaining of its eviction by such a tenant but the Crown can’t be dispossessed of property once vested in it (so how can this be?))
- The court rejected this – ejectment is just a remedy to eject one without title to remain in possession
But regardless ejectment is abolished and now covered by the Civil Procedure Act 2005 s20 which has a claim for possession of land
- Plaintiff’s proceedings for recovery of possession can involve recovery of compensation for wrongful occupation – this is to claim mesne profits which include the rental value of the premises during the ouster
Ejectment as an action grew out of the older trespass – to provide a possessor remedy because of damage caused by intrusion.
It is still the case that an occupier whose possession has been disturbed by another but does not need possession can bring an action of trespass claiming damages and equitable relief

McPhail v Persons Unknown (1973) 2 All ER 393

Facts: McPhail (M) owns a house with some furniture but it is generally unoccupied. It was left locked and secured but days later persons unknown got in and put a new lock on it. PU refused to give their names when M arrived with an inspector. Proceedings for possession were taken under RSC O 113 and they were served. Phillips J served an order that M do recover possession. The squatters appealed admitting no defence in law but asking for time.

Question: whether or not the judge is bound to make an order enforceable forthwith or is suspension possible

Ratio (Lord Denning MR):

The law as to squatters

A squatter is one without any right who enters upon a house/land. Saying that one is helpless avails them nothing (London Borough of Southwark v Williams)

Self-help – Trespassers never gain possession, they are guilty of an offence criminally and a wrong civilly. The owner of a house is not obliged to go to the courts to gain possession he/she is entitled to turn them out forcibly so long as he uses no more force than is reasonably necessary.
Remedy by action – the law in a civil society encourages that the court make self-help unnecessary. Hence an owner can get an order that he/she ‘do recover’ the land. The courts have never suspended such an order – once made the owner could get a writ of possession for the sheriff to cause him to be put into possession or do so himself.
- Policy – the courts should do so at once lest he be tempted to do it himself
- While the defendants seek a remedy in equity, The courts of equity would not intervene in aid of wrongdoer
- Supreme Court of Judicature Act – replaces ejectment but the machinery is the same. No time is mentioned and no date is given – the judgement was that the plaintiff ‘do recover’
Remedy by summons – Though difficulty was encountered where actions could not be made where people did not give their name or the squatter changed every day; the common law was overruled by RSC O 113 and CCR O 26 – summons may be issued for possession against unidentified squatters and the judgement is an order that the plaintiff ‘do recover’. The court cannot give any time

The position of tenants

A tenant who holds over after his term, however, is guilty of a criminal offence if he forcibly enters. Unlike the owner the tenant is not entitled to regain possession by his own self-help. He is bound to go to court and as such the court may fix a date upon which possession can be recovered

When the owner requests recovery of possession the court must give it. It doesn’t have discretion to suspend the order.

Appeals dismissed

Orders for possession

Questions

2.61

Even if the court had power to order a stay of execution, there would still be no cogent ground to order such a stay in favour of the squatters. The only tenable ground would be the fact that the house was under disuse in McPhail’s hands and thus, since he would not lose anything by allowing the squatters to stay in the premises they should be allowed to do so. Such a remedy seems equitable in nature.
Lord Denning held that there was no power to suspend the order on the basis of principle (in that the owner was entitled to recover possession by himself) and on policy (namely the court would encourage self-help if it did not order possession at once). Furthermore he decided on the basis of statutory interpretation; namely that no time frame is given in the state; only that the plaintiff ‘do recover’. There was also no equitable ground as equity cannot intervene for the aid of a wrongdoer.
It does not seem that the result would be different if the plaintiff had waited (unless words of the statute were to the contrary)

R v Wandsworth County Court ; Ex parte London Borough of Wandsworth [1975] PC - warrant under O 113 allows bailiff enforcing it to evict anyone, not just parties to the proceedings
But bear in mind that McPhail may be decided differently in AU jurisdictions depending on the applicable statutes (in VIC proceedings warranties of possession given more than 3 months ago can’t be enforced without leave of a judge)
The Statute of Forcible Entry has been adopted in the Imperial Acts Application Act 1969 (NSW). The old act prohibits entry “with strong hand” and “with multitude of people”, it is supplemented by statutes which prevent the detainer from initiating action against the owner.
- In WA and TAS the peaceable entrant can use force against all (including the owner) to defend possession provided bodily harm isn’t caused
Hemmings v Stoke Poges Golf Club Ltd – Scrutton LJ rules that the wrongful possessor has no action for damages against a rightful owner unless more force is used than reasonably necessary (a jury can find as much).
- The policy behind it – “I see no reason to add to the existing privileges of trespassers on property which does not belong to them by allowing them to recover...who uses a reasonable amount of force”
  - Applies in Macintosh v Lobel (1993) 30 NSWLR – where a landlord (who could have obtained a writ of possession executed by the sheriff) ejected a tenant whose lease expired with reasonable force.
  - The court affirmed the common law remedy of self-help in regaining possession and agreed that the landlord could have regained possession without approaching the court.
  - The rights this case gives to landlords has been abrogated by legislation – a landlord may only re-enter with the tenant’s consent or with a warrant from a court/tribunal
Squatters can also be criminally liable for forcible detainer for holding land in a manner likely to cause a breach of the peace (Imperial Acts Application Act 1969 (NSW))

Asher v Whitlock (1865) LR 1 QB 1

Facts: TW enclosed some waste lands of a manner in 1842; the holder of which was a lord and not party to these proceedings. 1850; TW encloses more and builds a cottage. In 1860 he dies, living on the waste lands; devising the will to L, his wife, during her widowhood till after her death/remarriage to his daughter MA. After T died, MA and L remain in possession. In 1861 L remarries the defendant W. In 1863 MA dies, the plaintiff A being her heir. In the same year L dies but W continues to occupy the land. A brings an action of ejectment against W.

Ratio (Cockburn CJ):

Possession is good against all the world except the person who can shew a good title

What is the position of the devisee (W)

The widow was the previous devisee but only...

#7347 - Possession Of Land - Property, Equity and Trusts 1

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