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Law Notes Property, Equity and Trusts 1 Notes

Possession Of Land Notes

Updated Possession Of Land Notes

Property, Equity and Trusts 1 Notes

Property, Equity and Trusts 1

Approximately 320 pages

The old Property, Equity & Trusts subject at UNSW. Dealt primarily with old system. Contents include detailed case notes (and super summaries ideal for use in an open book exam) and article summaries on the following classes:
Class 1&2 – The Concept of Property
Class 3&4 - Goods
Class 5&6 - Possession of Land
Class 7 - Limitation of Actions
Class 8 - The Doctrine of Tenure and Estates; Determinable and Conditional and Future Interests, The Doctrine of Waste, Fragmentation of legal/beneficial...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Property, Equity and Trusts 1 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Possession of Land

Land

  • 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.

Remedies for the recovery of possession of land

  • 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...

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