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Possession, Relative Title, and Ownership in English Law
Possession, Relative Title, and Ownership in English Law
LUKE ROSTILL
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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© Luke Rostill 2021
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ISBN 978–0–19–884310–8
DOI: 10.1093/oso/9780198843108.001.0001
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Preface
This book has a relatively long history. It is based on my DPhil thesis, which I completed at Oxford in 2016. For the most part, the claims that are advanced and defended in this book are the same as those that I argued for in the thesis.
The thesis that I submitted is not the thesis I originally intended to write. Initially, the aim was to individuate the various types of proprietary interest that English law recognises in respect of chattels. It soon became clear, however, that there are competing conceptions of ‘possessory title’, and that adopting one conception rather than another has important implications for the status of ownership in English law and the limits of relativity of title. It was obvious that one could not adequately engage with these matters in a single chapter. So, the aim of individuating various kinds of proprietary interest was replaced with the aim of understanding the nature of the ‘title’ that is acquired through possession. This is the central objective of this book.
Shortly before this book was completed, Dr Michael Crawford’s important contribution, An Expressive Theory of Possession, 1 was published. It has not been possible to incorporate a detailed discussion of Dr Crawford’s views into the text of this book (though I have been able to include a number of references to them in the notes). I hope it may assist the reader if I briefly set out my understanding of the relationship between the two books.
Dr Crawford’s answer to the question with which this book is primarily concerned is that the fact of possession generates an ‘ownership interest’.2 But this question is not the main focus of his book. Rather, Dr Crawford’s central aim is to answer two related questions:3 what, for the purposes of the rule, is the nature of possession? And why does possession, as opposed to some other mechanism, fulfil the function of creating property rights in tangible things? Dr Crawford’s thought-provoking answer to the first question differs, in some important respects, from the answer provided and defended in Chapter 2 of this book.
1 Michael JR Crawford, An Expressive Theory of Possession (Hart 2020).
2 ibid 10, 54–58.
3 ibid 7.
As for the second question, Dr Crawford denies that the ‘origin’ of the possession rule ‘can be traced to some elusive rationale’.4 Rather, ‘the possession convention was so pervasive in life that it was, consciously or otherwise, incorporated into the law’s formal system of rights and duties’.5 This book aims to provide a sound account of the current rules and the main considerations upon which they are based. It does not aim to provide a full explanation of how and why the rules emerged and evolved. It is argued, in Chapter 4, that the modern rules that confer fees simple on possessors of land were established by the courts in order to fulfil, or to aid the fulfilment of, objectives that Parliament adopted by enacting the Real Property Limitation Act 1833; objectives which Parliament reaffirmed its commitment to on more than one occasion in the 20th century. Is this compatible with Dr Crawford’s thesis? I think the answer depends on what is meant by the ‘origin’ of the rules. For while, according to the account in Chapter 4 of this book, the modern rules regarding land were instituted by the courts in the 19th century in order to achieve certain goals, legal rules providing protection in trespass to possessors of land, and rules conferring proprietary interests on those who were seised of land, emerged much earlier. It would be consistent with the views defended in this book to claim that Dr Crawford’s theory explains why these rules, as well as the rules that confer property rights on possessors of chattels, emerged. But since I do not aim in this book to provide a complete genealogy of the rules, and since I cannot do justice to Dr Crawford’s arguments here, I will not comment on whether this claim should be accepted.
I owe many debts of gratitude. One of the oldest is owed to the Warden and Fellows of Wadham College, Oxford. Wadham was my academic home for nearly a decade. This was a mighty privilege from which I benefited in countless ways. I particularly benefited from the instruction, guidance, mentorship, and support of the college’s law tutors: Jeffrey Hackney, Laura Hoyano, Wanjiru Njoya and, later, Simon Douglas, Rachel Taylor, Hannah Glover, Tarun Khaitan, Eveline Ramaekers, and Sandy Steel. Jeffrey and Laura supported and assisted me at every stage of my journey from law fresher to law lecturer and I wish to express my profound gratitude to them.
While writing my DPhil thesis, I shared a house with three other Wadham postgraduate research students: Diana Greenwald, Katia Mandaltsi, and Marie Tidball. They were the best housemates I could have wished for and I will always treasure our time together.
4 ibid 87.
5 ibid 113.
I would not have been able to embark on postgraduate study, or to write the thesis, without the financial support that I received from various quarters. My sincere thanks to 3 Verulam Buildings, Sir Roy Goode, the Oxford Law Faculty, Wadham College, and the Arts and Humanities Research Council.
The final stage of my DPhil was completed while I was a Supernumerary Teaching Fellow in Law at St John’s College, Oxford. St John’s was a wonderful place to teach and study and I would like to thank the President and Fellows of the college for giving me such a valuable opportunity. I am particularly grateful to my former colleagues in law: Paul Craig, Richard Ekins, and Simon Whittaker; and my predecessor, Jeremias Adams-Prassl.
Since 2016 I have been a Fellow of Trinity College, Oxford. I am conscious of how lucky I was to join such an impressive, vibrant, and friendly academic community. I would like to record my thanks to the Senior Tutor, Valerie Worth, and to the Senior Law Fellow, Nick Barber, who helped me to find time to research and write.
One of the benefits of writing this book, and the thesis on which it is based, at Oxford is that I was able to meet and learn from many outstanding private lawyers. I am especially grateful to Susan Bright, Simon Douglas, Joshua Getzler, and Bill Swadling for discussing the subject matter of this book, and a host of related issues, with me on many occasions over the last decade. I learned a great deal from them as a student and continue to learn from them as a colleague. Simon also agreed to examine the thesis, in conjunction with Robert Chambers. Their feedback was invaluable and I wish to express my gratitude to them.
One of my greatest debts is to Ben McFarlane, who supervised my DPhil. He was a model supervisor and went beyond the call of duty on many occasions— he even generously agreed to continue supervising the project after he had moved to UCL. As the pages of this book demonstrate, my thinking on possession, relativity of title, and ownership has been greatly influenced by his own. I am extraordinarily grateful to him.
I also benefited from discussing the ideas in this book with students on the Oxford undergraduate personal property course and the BCL/MJur advanced property and trusts course. I was also able to present my work at various conferences and workshops, including the Young Property Lawyers Forum in Stellenbosch in 2012; the Modern Studies in Property Law Postgraduate Conference in Liverpool in 2014; a workshop on property and trusts at UCL in 2015; meetings of the Oxford Property Law Discussion Group; an Oxford Law Faculty research seminar; and a colloquium on intersections in private law at the University of Sydney in 2019. I would like to thank all those who provided
comments or questions on these or other occasions, particularly: Bram Akkermans, John Armour, Elise Bant, Anna Berlee, Alexandra Braun, Adrian Briggs, John Cartwright, Matthew Conaglen, Michael Crawford, Paul S Davies, Sjef van Erp, Jamie Glister, Roy Goode, James Goudkamp, Sarah Green, Louise Gullifer, Birke Häcker, Robin Hickey, Björn Hoops, Emma Lees, Mike Macnair, Charles Mitchell, Aleksi Ollikainen-Read, Kenneth Reid, Jill Robbie, Joseph W Singer, Roger Smith, Robert Stevens, Andreas Televantos, Nicholas Tiverios, André van der Walt, Charlie Webb, and Sarah Worthington.
In the final stages, I received excellent research assistance, and many insightful comments, from Hin Liu, to whom I am grateful. I would also like to thank Jamie Berezin, Iona Jacob, Paulina dos Santos Major, and the rest of the team at OUP.
This book would not have been written were it not for the unconditional support, at every stage, of my parents Mark and Jackie, my sister Holly, and my grandparents Joan, Les, Doreen, and Clifford. When I arrived at Wadham in 2007, academia and the legal world were as new to them as they were to me. They did all they could to enable me to explore and, eventually, inhabit these worlds.
Finally, my ardent thanks to Sarah, for more than I can say, and to whom this book is dedicated.
Luke Rostill Oxford, August 2020
List of Abbreviations
Ad & El Adolphus & Ellis’ Queen’s Bench Reports
Ad & El (NS) Adolphus & Ellis’ Queen’s Bench Reports (New Series)
Adelaide L Rev Adelaide Law Review
Am J Comp L American Journal of Comparative Law
APQ American Philosophical Quarterly
B & Ad Barnewall & Adolphus’ King’s Bench Reports
B & Ald Barnewall & Alderson’s King’s Bench Reports
B & C Barnewall & Cresswell’s King’s Bench Reports
B & S Best & Smith’s Queen’s Bench Reports
Bing Bingham’s Common Pleas Reports
Bing NC Bingham’s New Cases, Common Pleas
Bl Comm Blackstone, Commentaries on the Laws of England
Bligh Bligh’s House of Lords Reports
Bulst Bulstrode’s King’s Bench Reports
Burr Burrow’s King’s Bench Reports
Car & M Carrington & Marshman’s Reports
Car & P Carrington & Payne’s Reports
CB Common Bench Reports
CB (NS) Common Bench Reports, New Series
CLR Commonwealth Law Reports
CLWR Common Law World Review
Cmd Command papers (1919-56)
Cmnd Command papers (1957-86)
Co Litt Coke, Commentary upon Littleton
Com Comyn’s King’s Bench Reports
Co Rep Coke’s King’s Bench Reports
Cox CC Cox’s Criminal Cases
CPR Civil Procedure Rules
CRA 2015 Consumer Rights Act 2015
CUP Cambridge University Press
Cro Eliz Croke’s King’s Bench Reports
CTLC Consumer and Trading Law Cases
DLR (3d) Dominion Law Reports (Third Series)
Dyer Dyer’s King’s Bench Reports
East East’s King’s Bench Reports
Edinburgh LR Edinburgh Law Review
Edinburgh UP Edinburgh University Press
xiv List of Abbreviations
EGLR Estates Gazette Law Reports
El & Bl
Ellis & Blackburn’s Queen’s Bench Reports
Eur Rev Private L European Review of Private Law
Exch Welsby, Hurlestone & Gordon’s Exchequer Reports
FCR Federal Court Reports (Australia)
Harv L Rev Harvard Law Review
H & C
H & N
Hurlstone & Coltman’s Exchequer Reports
Hurlstone & Norman’s Exchequer Reports
HC Deb House of Commons Debates (Hansard)
HL Deb House of Lords Debates (Hansard)
HLC House of Lords Cases
HUP Harvard University Press
IJNS Irish Jurist (New Series)
ILT Irish Law Times
Ir J Rep Irish Jurist Reports
Ir LR Irish Law Reports
J Eur Tort L
J of Equity
Journal of European Tort Law
Journal of Equity
JLS Journal of Legal Studies
J of Philosophy Journal of Philosophy
J Political Philosophy Journal of Political Philosophy
Jac & W
Jacob & Walker’s Chancery Reports
Jerusalem Rev LS Jerusalem Review of Legal Studies
Johnson Johnson’s Chancery Reports
Jur Jurist Reports
Jur (NS) Jurist Reports (New Series)
KCLJ King’s College Law Journal
LA 1939 Limitation Act 1939
LA 1980 Limitation Act 1980
Law & History Rev Law and History Review
Law Com CP No
Law Com No
Ld Raym
Law Commission Consultation Paper Number
Law Commission Report Number
Lord Raymond’s King’s Bench and Common Pleas Reports
LEG Legal Theory
Legge
Legge’s Supreme Court Cases (New South Wales)
Leon Leonard’s Reports
LJ Ex Law Journal Reports, Exchequer New Series
LJKB
Law Journal Reports, King’s Bench New Series
LJQB Law Journal Reports, Queen’s Bench New Series
Ll L Rep
LRA 2002
Lloyd’s List Law Reports
Land Registration Act 2002
LR Ex Law Reports, Exchequer Reports
LR Ex D Law Reports, Exchequer Division
LR HL Law Reports, House of Lords
LR KB Law Reports, King’s Bench
LR QB Law Reports, Queen’s Bench (Second Series)
LS Legal Studies
LT Law Times Reports
LTOS Law Times Reports, Old Series
Macq Macqueen’s Scotch Appeal Cases
Melbourne U L Rev Melbourne University Law Review
Mich LR Michigan Law Review
Minnesota LR Minnesota Law Review
M & G
M & Rob
Mood & M
M & W
Manning and Granger’s Common Pleas Reports
Moody & Robinson’s Nisi Prius Reports
Moody & Malkin’s Nisi Prius Reports
Meeson & Welsby’s Exchequer Reports
Neb L Rev Nebraska Law Review
NILQ Northern Ireland Legal Quarterly
NW North Western Reporter (US)
NZLR New Zealand Law Reports
OUP Oxford University Press
Saund Saunders’ King’s Bench Reports
SGA 1979 Sale of Goods Act 1979
SR (NSW) State Reports (New South Wales)
Strange Strange’s King’s Bench Reports
Style Style’s King’s Bench Reports
Syd LR
Sydney Law Review
Taunt Taunton’s Common Pleas Reports
Term Reports
Durnford & East’s Term Reports, King’s Bench
TIL Theoretical Inquiries in Law
TLR Times Law Reports
Tort L Rev Tort Law Review
Tulane L Rev Tulane Law Review
Tulsa Law Rev Tulsa Law Review
U of Queensland LJ University of Queensland Law Journal
UCLA L Rev University of California at Los Angeles Law Review
UTLJ University of Toronto Law Journal
Ves Jr
Vesey Junior’s Chancery Reports
Virginia LR Virginia Law Review
Washington ULQ Washington University Law Quarterly
Yale LJ
Yale Law Journal
Table of Cases
Adams v Naylor [1944] KB 750 (CA) 58
Agency Co Ltd v Short (1888) 13 App Cas 793 (PC)
Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 (HL)
2, 25, 59, 72
Alfred McAlpine Construction Ltd v Panatown Ltd (No 1) [2001] 1 AC 518 (HL) . . . . . . 116
Aliakmon, The. See Leigh & Sullivan Ltd v Aliakmon Shipping Co Ltd
Allan v Liverpool Overseers (1874) LR 9 QB 180 (QB) 16, 58, 70–71
Allen v Rivington (1670) 2 Saund 111; 85 ER 813
Allen v Roughley (1955) 94 CLR 98 (HCA) .
Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd [1987] 2 EGLR 173 (Ch)
32–33, 65–66, 77
165–66
Anderson v Gouldberg (1892) 53 NW 636 29–30
Anon (1652) Style 368; 82 ER 784 62–63
Armory v Delamirie (1722) 1 Strange 505; 93 ER 664 105
Ashby v Tolhurst [1937] 2 KB 242 (CA) .
Asher v Whitlock (1865) LR 1 QB 1; (1865) 35 LJQB 17; (1865) 11 Jur (NS) 925
132
67–68, 70–71, 72–77, 78, 79, 82
Astor’s Settlement Trusts, Re [1952] Ch 534 (Ch) 127
Atkinson and Horsell’s Contract, Re [1912] 2 Ch 1 (CA) 3–4, 37, 81, 85
Atlantic Computer Systems Plc, Re [1992] Ch 505 (CA) 11–12
Attenborough v London and St Katharine’s Dock Co (1878) 3 CPD 450 (CA) . . . . . 123–24
Attorney-General (Ontario) v Mercer (1883) 8 App Cas 767 (PC)
Attorney-General v Brown (1847) 1 Legge 312 (NSWSC)
88, 89
90
Back v Daniels [1925] 1 KB 526 (CA) 165–66
Bannerman Town v Eleuthera Properties Ltd [2018] UKPC 27 21, 22, 94–95
Barker v Furlong [1891] 2 Ch 172 (Ch)
Basset v Maynard (1600) Cro Eliz 819; 78 ER 1046
Baxter v Taylor (1832) 4 B & Ad 72; 110 ER 382
122–23
102
55
Beckham v Drake (1849) 2 HLC 579; 9 ER 1213 67
Berrington d Dormer v Parkhurst (1811) 13 East 489; 104 ER 460 64
Betts v Metropolitan Police District Receiver [1932] 2 KB 595 (KB)
Biddle v Bond (1865) 6 B & S 225; 122 ER 1179 (QB)
BMW Financial Services (GB) Ltd v Bhagwanani [2007] EWCA Civ 1230; [2007] CTLC 280
108
119–20
101–2
Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35; [2011] 1 AC 380 16, 165–66
Boosey v Davis (1987) 55 P & CR 83 (CA)
Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2020] EWCA Civ 578
18
27–28
Bourne v Fosbrooke (1865) 18 CB (NS) 515; 144 ER 545 (CP) 101
Brest v Lever (1841) 7 M & W 593; 151 ER 904 57
Bridges v Hawkesworth (1851) 15 Jur 1079 103, 105, 121–22
Bristow v Cormican (1878) 3 App Cas 641 (HL)
Brown, Re [1954] Ch 39 (Ch)
58, 59
165–66
xviii Table of Cases
Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 (HL) 95–96
Buckinghamshire County Council v Moran [1990] Ch 623 (CA) 16, 18, 19–20, 21
Buckley v Gross (1863) 3 B & S 566; 122 ER 213; (1863) 32 LJQB 129; (1863) 9 Jur (NS) 986
Burton v Hughes (1824) 2 Bing 173; 130 ER 272
Buttle v Saunders [1950] 2 All ER 193 (Ch)
102, 107–8
143–44
Carter v Johnson (1839) 2 M & Rob 263; 174 ER 283 101, 120
Cary v Holt (1745) 2 Strange 1238; 93 ER 1154 57
Central London Commercial Estates Ltd v Kato Kagaku Co Ltd [1998] 4 All ER 948 (Ch)
Chabbra Corp Pte Ltd v Jag Shakti (Owners) (The Jag Shakti) [1986] AC 337 (PC)
Chambers v Donaldson (1809) 11 East 65; 103 ER 929 58
Chambers v Havering London Borough Council [2011] EWCA Civ 1576; [2012] 1 P & CR 17
Chinery v Viall (1860) 5 H & N 288; 157 ER 1192
Cholmondeley v Clinton (1820) 2 Jac & W 1; 37 ER 527
17
141
Cholmondeley v Clinton (1821) 4 Bligh 1; 4 ER 721 67
Chung Ping Kwan v Lamb Island Developments Co Ltd [1997] AC 38 (PC) 85
City of London Corp v Appleyard [1963] 1 WLR 982 (QB)
Clarke v Clarke (1868) IR 2 CL 395 (QB)
Clowes Developments (UK) Ltd v Walters [2005] EWHC 669 (Ch); [2006] 1 P & CR 1
Club Cruise Entertainment & Travelling Services Europe BV v Department for Transport (The Van Gogh) [2008] EWHC 2794 (Comm) 101
Cochrane v Moore (1890) 25 QBD 57 (CA)
Coggs v Bernard (1703) 2 Ld Raym 909; 92 ER 107
Coldman v Hill [1919] 1 KB 443 (CA)
151–52
53–54
132, 134
Colley v Overseas Exporters [1921] 3 KB 302 (KB) 109
Conway v George Wimpey & Co Ltd [1951] 2 KB 266 (CA) 56
Cosslett (Contractors) Ltd, Re [1998] Ch 495 (CA) 35
Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 381; [2001] 1 WLR 1437 .
. 2, 103, 105, 106–9, 112, 121–22, 124, 151–52
Cowan v Scargill [1985] Ch 270 (Ch) 161–62
Crinion v Minister for Justice [1959] Ir J Rep 15 21–22
Dalton v Angus & Co (1881) 6 App Cas 740 (HL) .
Dalton v Fitzgerald [1897] 2 Ch 86 (CA)
Danford v McAnulty (1883) 8 App Cas 456 (HL)
60–61
77, 85
59, 64
Davison v Gent (1857) 1 H & N 744; 156 ER 1400; (1857) 3 Jur (NS) 342; (1857) 26 LJ Ex 122; (1857) 28 LTOS 291 67–72, 74–75
de Franco v Commissioner of Police of the Metropolis, The Times, 8 May 1987 (CA) .
Delaney v TP Smith Ltd [1946] KB 393 (CA)
Doe d Carter v Barnard (1849) 13 Ad & El (NS) 945; 116 ER 1524
124
58
67, 70–71
Doe d Hall v Penfold (1838) 8 Car & P 536, 537; 173 ER 607 64–65, 66
Doe d Harding v Cooke (1831) 7 Bing 346; 131 ER 134 65–66
Doe d Hughes v Dyeball (1829) Mood & M 346; 173 ER 1184, sub nom Doe d Hughes v Dyball (1829) (1829) 3 Car & P 610; 172 ER 567
68–69, 74
Doe d Humphrey v Martin (1841) Car & M 32; 174 ER 395 64–66
Doe d Jukes v Sumner (1845) 14 M & W 39; 153 ER 380 .
Doe d Smith and Payne v Webber (1834) 1 Ad & El 119; 110 ER 1152 .
Donald v Suckling (1866) LR 1 QB 585 (QB) .
85
64–66
99–100
Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738 138
East West Corp v DKBS AF 1912 [2003] EWCA Civ 83; [2003] QB 1509 135–36
Eastern Construction Co Ltd v National Trust Co Ltd [1914] AC 197 (PC) .
Elwes v Brigg Gas Co (1886) 33 Ch D 562 (Ch) .
116
22
Esso Petroleum Co Ltd v Southport Corp [1953] 3 WLR 773 (Assizes); [1954] 2 QB 182 (CA); [1956] AC 218 (HL) 56
Ezekiel v Fraser [2002] EWHC 2066 (Ch) 70–71, 79–80, 81
Fairweather v St Marylebone Property Co Ltd [1963] AC 510 (HL) .
Flack v National Crime Authority (1997) 80 FCR 137 (FCA)
Foster v Warblington Urban DC [1906] 1 KB 648 (CA) .
80–81, 85
12–13
59–60
Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153 101, 172
Franklin v Neate (1844) 13 M & W 480; 153 ER 200 99–100, 116–17
Garlick v W & H Rycroft Ltd (CA, 30 June 1982) .
Gerrarde v Worseley (1580) Dyer 374a; 73 ER 839 .
132, 134
. 62–63
Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd [1970] 1 WLR 1262 (PC) 133–34, 135–36
Giles v Glover (1832) 9 Bing 128; 131 ER 563 101
Gledhill v Hunter (1880) 14 Ch D 492 (Ch) .
63
Gough v Chief Constable of the West Midlands Police [2004] EWCA Civ 206 . . . . 103, 105
Government of Iran v The Barakat Galleries Ltd [2007] EWCA Civ 1374; [2009] QB 22 102
Graham v Peat (1801) 1 East 244; 102 ER 95 57, 58
Greenmanor Ltd v Pilford [2012] EWCA Civ 756 16, 18–19
Hamps v Darby [1948] 2 KB 311 (CA)
Hannah v Peel [1945] KB 509 (KB) .
Harker v Birkbeck (1764) 3 Burr 1556; 97 ER 978
101
22, 105–6, 121–22, 151–52
57
Harper v Charlesworth (1825) 4 B & C 574; 107 ER 1174 58, 59, 66–67
Hartley v Moxham (1842) 3 Ad & El (NS) 701; 114 ER 675 101
Hawdon v Khan (1920) 20 SR (NSW) 703 (NSWSC) 32–33, 77, 79, 81
Heaney v Kirkby [2015] UKUT 0178 (TCC)
Heydon and Smith’s Case (1610) 13 Co Rep 67; 77 ER 1476
Hollins v Fowler (1875) LR 7 HL 757 (HL) .
96–97
143–44
20–21, 133–34, 172
Houghland v RR Low (Luxury Coaches) Ltd [1962] 1 QB 694 (CA) 132, 134
Hunt v Peake (1860) Johnson 705; 70 ER 603 60–61
Hunter v Canary Wharf [1997] AC 655 (HL) 59–60, 61, 72
Isaack v Clark (1614) 2 Bulst 306; 80 ER 1143
20–21, 133–34
Ironmonger v Bernard International (Estate Division) (CA, 9 February 1996) . .
. . . 92–93
Irving v National Provincial Bank Ltd [1962] 2 QB 73 (CA) 108
J A Pye (Oxford) Ltd v Graham [2000] Ch 676 (Ch) . .
J A Pye (Oxford) Ltd v Graham [2001] EWCA Civ 117; [2001] Ch 804 . .
J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419
145–46, 149–50
. 145–46, 147–48
. 15, 16–17, 18, 19–20, 21, 22, 87, 94–95, 145, 146–47, 149–50
J A Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3; (2008) 46 EHRR 45 145–46
J Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 (Ch); [2009] 1 EGLR 93 20, 94–95
Jag Shakti, The. See Chabbra Corp Pte Ltd v Jag Shakti (Owners).
Jan De Nul (UK) Ltd v Axa Royale Belge SA [2002] EWCA Civ 209; [2002] 1 Lloyd’s Rep 583 .
58–59
Jayne v Price (1814) 5 Taunt 326, 128 ER 715 65–66
Jeffries v Great Western Railway Co (1856) 5 El & Bl 802; 119 ER 680 49, 67, 99, 101, 102, 120, 144
Johnson v Diprose [1893] 1 QB 512 (CA) .
Jolliffe v Willmett & Co [1971] 1 All ER 478 (QB) .
Jones v Chapman (1849) 2 Exch 803, 154 ER 717; 18 LJ Ex 456 .
101
56
58, 59, 70–71
Joslin v Hipgrave [2015] UKFTT 0497 (PC) 96–97
Jupiter (No 3), The [1927] P 122 (PDA) 119–20
Kay v Lambeth LBC [2006] UHKL 10; [2006] 2 AC 465
Kenny v Preen [1963] 1 QB 499 (CA)
Kirk v Gregory (1876) LR 1 Ex D 55
95–96
23
101
Kowal v Ellis (1977) 76 DLR (3d) 546 (Manitoba Court of Appeal) 133–34
Kulkarni v Manor Credit (Davenham) Ltd [2010] EWCA Civ 69 110–11
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5) [2002] UKHL 19; [2002] 2 AC 883 .
101–2, 137–38, 140–41, 172
Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912; (2001) 82 P & CR 494 19–20
Lancashire & Yorkshire Railway Co v MacNicoll (1918) 88 LJKB 601 (KB) 172
Lawrence v Fen Tigers Ltd [2014] UKSC 46; [2015] AC 106
Leach v Jay (1878) 9 Ch D 42 (CA)
Leake v Loveday (1842) 4 M & G 972; 134 ER 399
165–66
53, 85
120–21
Leigh & Sullivan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1986] AC 785 (HL) 58–59, 102–3, 112
Letang v Cooper [1965] 1 QB 232 (CA) 56, 101
Lord Advocate v Young (1887) 12 App Cas 544 (HL)
Lowe’s Will’s Trust, Re [1973] 1 WLR 882 (CA) .
Lynn Lewis Ltd v The Environment Agency [2007] EWLandRA REF/2005/1068 .
17
88
. 96–97
M’Donnell v M’Kinty (1847) 10 Ir LR 514 83
M’Dowell v Ulster Bank (1899) 33 ILT 225 21–22
McPhail v Doulton [1971] AC 424 (HL)
McPhail v Persons, Names Unknown [1973] Ch 447 (CA)
Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA)
127
63
88, 90
Marcq v Christie Manson & Woods Ltd [2003] EWCA Civ 731; [2004] QB 286 135–36
Mainline Private Hire Ltd v Nolan [2011] EWCA Civ 189; [2011] CTLC 145 16–17, 19
Makepiece v Fletcher (1734) 2 Com 457;92 ER 1158 64
Malik v Malik [2019] EWHC 1843 (Ch) .
Marsden v Miller (1992) 64 P & CR 239 (CA)
Mayfair Property Co v Johnston [1894] 1 Ch 508 (Ch)
20, 21
15, 16, 18–19, 21
55
Mayor of London v Hall [2010] EWCA Civ 817; [2011] 1 WLR 504 53–54, 81
Metters v Brown (1863) 1 H & C 686; 158 ER 1060; (1863) 32 LJ Ex 138 49, 65–66
Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52; [2012] 1 AC 955 94–96
Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732 . . . . 132
Mills v Brooker [1919] 1 KB 555 (DC)
165–66
Mitchell v Ealing London Borough Council [1979] QB 1 (QB) 132, 134
Mitchell v Glasgow City Council [2009] 1 AC 874 (HL) .
Moon v Raphael (1835) 2 Bing NC 310; 132 ER 122 .
Morice v Bishop of Durham (1804) 9 Ves Jr 399; (1805) 10 Ves Jr 522
132
141
127
Morris v CW Martin & Sons Ltd [1966] 1 QB 716 (CA) 132
Morrison Steamship Co Ltd v Greystoke Castle [1947] AC 265 (HL) 116
Morritt, Re (1886) 18 QBD 222 (CA) 99–100
Moses v Lovegrove [1952] 2 QB 533 (CA) .
83
Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 (CA) . . 77, 90–93
National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861 (CA) 56, 101
National Crime Authority v Flack (1998) 86 FCR 16 (FCAFC) 12–13, 106
National Employers’ Mutual General Insurance Association Ltd v Jones [1990] 1 AC 24 (HL)
National Provincial Bank Ltd v Ainsworth [1965] AC 1175 (HL)
Nelson v Cherrill (1832) 8 Bing 316; 131 ER 415 .
110–11
58
120
Nepean v Doe d Knight (1837) 2 M & W 894; 150 ER 1021 87
Network Rail Infrastructure Ltd v Conarken Group Ltd [2010] EWHC 1852 (QB); [2010] BLR 601
Newman v Bourne & Hollingsworth (1915) 31 TLR 209 (DC)
Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84 (Ch)
O’Sullivan v Williams [1992] 3 All ER 385 (CA) 116
Ocean Estates Ltd v Pinder [1969] 2 AC 19 (PC) 2, 19–20
Odessa, The [1916] 1 AC 145 (PC) .
Ofulue v Bossert [2008] EWCA Civ 7; [2009] Ch 1
Oxford Meat Co Pty v McDonald [1963] 63 SR (NSW) 423
99–100, 116–17
145–46
70–71
Parker v British Airways Board [1982] QB 1004 (CA) 2, 12–13, 16, 19, 21–22, 28–29, 103, 121–22
Parker v Godin (1728) 2 Strange 813; 93 ER 866
Patel v Mirza [2016] UKSC 42; [2017] AC 467
Peaceable d Uncle v Watson (1811) 4 Taunt 16; 128 ER 232
172
106
64–65
Pemberton v Southwark LBC [2000] 1 WLR 1672 (CA) 59–60
Perry v Clissold [1907] AC 73 (PC) 70–71, 72, 77
Phillips v Vaughan [2016] UKFTT 0320 (PC) 96–97
Phipps v Pears [1965] 1 QB 76 (CA)
Pioneer Container, The [1994] 2 AC 324 (PC)
Port of London v Ashmore [2009] EWHC 954 (Ch) .
165–66
135–36
18
Port of London Authority v Mendoza [2017] UKUT 146 (TCC) 21
Powell v McFarlane (1977) 38 P & CR 452 (Ch) 15, 16–17, 19–20, 21, 94
Prangnell-O’Neill v Lady Skiffington 1984 SLT 282 (IH) 151–52
R v Allpress [2009] EWCA Crim 8; [2009] 2 Cr App R (S) 58
R v D’Eyncourt and Ryan (1888) 21 QBD 109 (DC) .
114–16
103
R v Lambert [2001] UKHL 37; [2002] 2 AC 545 11–12
R v McNamara (1988) 87 Cr App R 246 (CA) 11–12
R v May [2008] UKHL 28; [2008] 1 AC 1028
R v Ngan [2008] 2 NZLR 48 (Supreme Court of New Zealand)
R v Thomas Smith (1855) 6 Cox CC 554
R (Best) v Chief Land Registrar [2015] EWCA Civ 17; [2016] QB 23
146
Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125 (CA) 18
Reynolds v Clarke (1725) 2 Ld Raym 1399 56
Rhone v Stephens [1994] 2 AC 310 (HL) 165–66
Roberts v Tayler (1845) 1 CB 117; 135 ER 481 70–71
Robinson v Chief Constable of West Yorkshire [2018] UKSC 4; [2018] AC 736 .
Roe d Haldane and Urry v Harvey (1769) 4 Burr 2484; 98 ER 302
Rogers Sons & Co v Lambert & Co [1891] 1 QB 318 (CA)
. . 132
59, 64
119–20, 121–22
Rogers v Spence (1844) 13 M & W 571; 153 ER 239 67
Rooth v Wilson (1817) 1 B & Ald 59; 106 ER 22 102–3
Rosenberg v Cook (1881) 8 QBD 162 (CA) 77–79, 94–95
Rowland v Divall [1923] 2 KB 500 (CA)
Russell v Wilson (1923) 33 CLR 538 (HCA) .
Sandeman Coprimar SA v Transitos y Transportes Integrales SL [2003]
110
101, 106
EWCA Civ 113; [2003] QB 1270 135–36
Sanderson v Marsden (1922) 10 Ll L Rep 467 (CA) 137–38
Scmlla Properties Ltd v Gesso Properties (BVI) Ltd [1995] BCC 793 (Ch) . . . . . 89, 167–68
Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11; [2009] 1 WLR 2780 .
23–24
Sedleigh-Denfield v O’Callaghan [1940] AC 880 (HL) 165–66
Sevilleja v Marex Financial Ltd [2020] UKSC 31; [2020] 3 WLR 255 124–25
Sewell v Burdick (The Zoe) (1884) 10 App Cas 74 (HL) .
Simpson v Fergus (1999) 79 P & CR 398 (CA)
Site Developments (Ferndown) Ltd v Cuthbury Ltd [2010] EWHC 10 (Ch); [2011] Ch 226
112–13
18–19
90–91
Smith v Littlewoods Organisation Ltd [1987] AC 241 (HL) 132–33
Smith v Milles (1786) 1 Term Reports 475; 99 ER 1205 101
South Staffordshire Water Co v Sharman [1896] 2 QB 44 (DC) .
Southcot v Bennet (1600) Cro Eliz 815; 78 ER 1041
St Marylebone Property Co Ltd v Fairweather [1962] 1 QB 498 (CA) .
. 12–13, 14
143
. 3, 72
Street v Mountford [1985] AC 809 (HL) 55, 94–95, 165–66
Sutton v Buck (1810) 2 Taunt 302; 127 ER 1094 102, 143–44
Swire v Leach (1865) 18 CB (NS) 479; 144 ER 531 143–44
Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 (PC)
Tapling v Jones (1865) 11 HLC 290; 11 ER 1344
94–95
165–66
Thompson v Nixon [1966] 1 QB 103 (DC) 133–34
Tichborne v Weir (1892) 67 LT 735 (CA) 85
Towers & Co v Gray [1961] 2 QB 351 (DC) 11–12
Trustees of Dundee Harbour v Dougall (1852) 1 Macq 317 (HL)
Tubantia, The [1924] P 78 (PDA) .
147
16–17, 18, 19
Turner v Chief Land Registrar [2013] EWHC 1382 (Ch); [2013] 2 P & CR 12 3–4, 80–81, 90
Turner v Hardcastle (1862) 11 CB (NS) 683; 142 ER 964 143–44
Umma v Appu [1939] AC 136 (PC) .
United Australia Ltd v Barclays Bank Ltd [1941] AC 1 (HL) .
USA v Dollfus Mieg et Compagnie SA [1952] AC 582 (HL) .
Van Gogh, The. See Club Cruise Entertainment & Travelling Services Europe BV v Department for Transport
VFS Financial Services (UK) Ltd v Euro Auctions (UK) Ltd [2007] EWHC 1492 (QB) .
18
137–38
101
Walgrave v Ogden (1589) 1 Leon 224; 74 ER 205 101–2
Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (HL) . . . . . . . . 11–12, 13–14
Waverley Borough Council v Fletcher [1996] QB 334 (CA) .
Webb v Chief Constable of Merseyside Police [2000] QB 427 (CA)
. 12–13, 22, 103–4
105
Webb v Fox (1797) 7 Term Reports 391; 101 ER 1037 102
Wells v Pilling Parish Council [2008] EWHC 556 (Ch); [2008] 2 EGLR 29 2
Whale v Hitchcock (1876) 34 LT 136 (DC) 64–66
Wheeler v Baldwin (1934) 52 CLR 609 (HCA)
White v Morris (1852) 11 CB 1015; 138 ER 778
White v Withers LLP [2009] EWCA Civ 1122; [2010] 1 FLR 859
77
101
101
Wilbraham v Snow (1668) 2 Saund 47; 85 ER 624, 628 99
Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514; [2019] QB 601
Wilson v Lombank Ltd [1963] 1 WLR 1294
Winder, Ex p (1877) 6 Ch D 696 (Ch)
Winkfield, The [1902] P 42 (CA) .
55, 59–60
123
77
49, 102–3, 116–17, 120, 123–24, 128–29, 137–38, 143–44
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 (HL)
Wretham v Ross [2005] EWHC 1259 (Ch)
Wuta-Ofei v Danquah [1961] 1 WLR 1238 (PC)
165–66
20, 21
17
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1 132
Young v Hichens (1844) 6 Ad & El (NS) 606; 115 ER 228 9
Zarb v Parry [2011] EWCA Civ 1306; [2012] 1 WLR 1240
Zoe, The. See Sewell v Burdick
15, 16
Table of Legislation
UK STATUTES
Administration of Estates Act 1925
sch 2, pt 1 167
Civil Liability (Contribution) Act 1978
s 1(1) .
141–42n.72
Common Law Procedure Act 1852 . . . . . 63
s 168 . .
sch 6 23–24, 83–84, 96–97, 149–50
sch 6(4) 83–84
sch 6(5)(1) .
sch 6(7) .
sch 6(9) .
. . 63
s 169 63
sch A 63
Companies Act 2006
s 859A .
Consumer Rights Act 2015
s 4(1) .
. 83–84
83–84
83–84
sch 6(9)(1) 80–81, 96
Law of Property Act 1922
s 128(2) 167n.81
s 138
sch 12(4)–(6)
Law of Property Act 1925
. 151–52
110
s 5 109
Criminal Law Act 1977
s 6(1)–(1A) .
Drugs (Prevention of Misuse) Act 1964
. . . . . 29–30
. 12n.29
s 1(1) 11–12
Factors Act 1889
s 9 110–11
Human Rights Act 1998
s 1(1)(b) .
s 4
167n.81
167n.81
90
s 1(1) 90
s 1(1)(a) 55n.17
s 51(1) .
s 52
s 95(4)
s 205(1)(xix) .
85–86n.227
165n.64
55n.17
55n.17
Limitation Act 1939 83, 152–53
s 4 83
s 5
s 10
s 10(1)
165–66
165–66
s 6 165–66
Insolvency Act 1986
s 283 165–66
s 283A
s 306
s 436(1) .
Land Registration Act 1925
15n.44, 83
15n.44, 83
83
s 10(2) 83
s 16 83 sch 83
Limitation Act 1980 . . . 15n.44, 83, 152–53
s 2
s 3(1)
165–66
165–66
165–66
s 75 83n.207
Land Registration Act 2002 80–81, 83–84, 96–97, 149–50
s 4
s 15(3) .
152–53
152–53
s 3(2) 152–53
s 4 152–53
s 15 83, 90–91, 145, 149–50
s 15(1)
s 17
165n.64
80–81
s 27 165n.64
s 96 83–84, 149–50
s 96(1) .
s 96(3)
s 97
s 98 .
149–50
149–50
83–84, 149–50
83–84, 149–50
145
83, 96–97, 145–46, 147–50
s 18 83, 145
s 28 145 sch 1 83 sch 1(1)
145 Metropolitan Police Courts Act 1839
s 29
107–8
Misuse of Drugs Act 1971 12n.29
s 5(2) 12n.29
s 28(3)(b)(i) 12n.29
Police and Criminal Evidence Act 1984
s 22 106
Police (Property) Act 1897
s 1
Presumption of Death Act 2013
ss 1–3 .
Proceeds of Crime Act 2002
108
. 44n.81
s 76(4) 115
s 84(2) 115
s 84(2)(b) .
s 84(2)(h) .
Real Property Act 1845
115
115
s 6 53
Real Property Limitation Act 1833 63, 82–83, 84–85, 87, 98, 144–45
s 2 .
s 3 .
. 82
82
s 34 82–83
s 36 63
s 39
Real Property Limitation Act 1874
s 1
Sale of Goods Act 1979
s 24 110
s 25 110
s 25(1) 110–11
s 61(1) . . . . .
Statute of Limitations 1623 (21 Jac 1, c 16) . .
. 109, 110
64
Statute of Westminster the Third (Quia Emptores) 1290 (18 Edw 1, c 1) 55–56
Supreme Court of Judicature Act 1875 . . 63
Tenures Abolition Act 1660 . . . . . . . . . 167
Torts (Interference with Goods) Act 1977 119, 123–25
s 2(2) 101–2n.18
s 7(1) 124
s 7(2) .
s 8(1) .
Wills Act 1837
64
83
s 2 109, 110
s 2(1) 109
s 2(4) .
s 2(5)
s 2(6) . .
124
116, 124–25
s 3 53, 55–56
UK STATUTORY INSTRUMENTS
Civil Procedure Rules 1998, SI 1998/3132 124
r 19.5A(1) 124, 151n.125
r 19.5A(2) . . . .
109
109
109
s 12(1) 110
s 12(3) 110
124
INTERNATIONAL INSTRUMENTS
European Convention on Human Rights Protocol 1, Art 1 165–66
1 Introduction
For centuries, jurists have reflected on the nature and significance of ownership and possession.1 This is understandable, for the concepts of ownership and possession have played a momentous role in legal, political, and economic thought, and rules relating to ownership and possession are central components of many property systems. One issue that jurists have been particularly interested in is the relationship between ownership and possession. Indeed, Richard Posner has said that ‘[t]he “problem” of possession, and the source of its enduring fascination as much to the Romans, Savigny, and Holmes as to ourselves, is precisely its relation to property’.2
With respect to English law, a common view is that ownership and possession are fundamental concepts in the law of personal property. According to the authors of a number of practitioner and student textbooks,3 English law recognises two kinds of legal (as opposed to equitable) proprietary interests in respect of tangible chattels:4 legal ownership interests and possessory interests. The central questions of personal property law, on this view, include: what are legal ownership interests and possessory interests? How are these interests acquired and transferred? And how are they protected? One question that must be addressed by those who defend this view is whether, within this framework, one can make sense of the fact that English law is what Tony Honoré has called a ‘multititular system’, ie a system in which multiple, independent titles to certain land or a particular chattel can exist concurrently.5
1 See David J Seipp, ‘The Concept of Property in the Early Common Law’ (1994) 12 Law & History Rev 29; James Gordley and Ugo Mattei, ‘Protecting Possession’ (1996) 44 Am J Comp Law 293; Joshua Getzler, ‘Roman Ideas of Landownership’ in Susan Bright and John Dewar (eds), Land Law: Themes and Perspectives (OUP 1998).
2 Richard A Posner, ‘Savigny, Homes, and the Law and Economics of Possession’ (2000) 86 Virginia LR 535, 543.
3 eg Sarah Worthington, Personal Property Law: Text, Cases and Materials (Hart 2000) 16–17, ch 2; Ewan McKendrick (ed), Goode on Commercial Law (5th edn, Penguin 2016) ch 2; Michael Bridge and others, The Law of Personal Property (2nd edn, Sweet & Maxwell 2018) chs 2, 10.
4 Tangible chattels are sometimes called ‘choses in possession’. They are corporeal, moveable things that can be the subject matter of proprietary interests (eg books, pianos, and cars). Hereinafter, tangible chattels are called simply ‘chattels’.
5 AM Honoré, ‘Ownership’ in AG Guest (ed), Oxford Essays in Jurisprudence (OUP 1961) 107, 136–39. ‘Land’, for present purposes, refers to corporeal hereditaments, including the surface layer of the
Possession, Relative Title, and Ownership in English Law. Luke Rostill, Oxford University Press (2021). © Luke Rostill. DOI: 10.1093/oso/9780198843108.003.0001
In English law, this system rests on two basic principles. The first is the principle of relativity of title. This, as Lord Diplock explained in Ocean Estates Ltd v Pinder, 6 is the principle that ‘[w]here questions of title . . . arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants’.7 If, for example, B brings an action to recover possession of land from C, it is not a defence that an unconnected third party, A, has a ‘better title’ to the land than B.8
The second principle is that possession is a source of ‘title’. In Alan Wibberley Building Ltd v Insley, 9 Lord Hoffmann said: ‘[p]ossession is in itself a good title against anyone who cannot show a prior and therefore better right to possession’.10 If, for example, B found A’s wallet in the street and picked it up, B, by taking possession, acquired a ‘title’ to the wallet that is good against all the world, except those who have a better, because earlier, ‘title’.11
It is widely recognised that these principles are foundational;12 yet they have long been, and still are, interpreted in opposing ways by judges, practitioners, and academics. One central and divisive issue concerns the nature of the ‘title’ that is acquired through taking possession,13 and how it relates to ownership. Among those who believe that English law recognises two kinds of legal proprietary interests in respect of chattels— legal ownership interests and possessory interests—some would say that B, by taking possession of the wallet, acquired a ‘possessory interest’.14 Others would say that B acquired a ‘possessory title to legal ownership’.15 Since B has a mere ‘possessory title’, B’s interest, unlike A’s, will generally determine if and when B ceases to be in possession.16
earth, an area of space above the surface, plants, buildings, and fixtures. For discussion, see Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009) 8–55.
6 [1969] 2 AC 19 (PC).
7 ibid 25.
8 See Chapter 4 (section 4.2.2.2).
9 [1999] 1 WLR 894 (HL).
10 ibid 898.
11 Parker v British Airways Board [1982] QB 1004 (CA); Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 381; [2001] 1 WLR 1437.
12 See, eg Wells v Pilling Parish Council [2008] EWHC 556 (Ch); [2008] 2 EGLR 29 [7] (Lewison J): ‘the principle of relativity of title . . . is the bedrock of English land law’.
13 Everyone accepts that, where a person takes possession of an unowned chattel (res nullius), the possessor acquires an alienable proprietary interest that is capable of lasting forever and comprises a right to exclude the world at large. The debate concerns the effect of taking possession of (a) land, which is necessarily held by someone, or (b) chattels that are not unowned.
14 eg Bridge and others (n 3) paras 10-004, 10-013, 10-018.
15 eg McKendrick (n 3) paras 2.20–2.24.
16 ibid para 2.22. It is important to recognise that the terms ‘possessory title’ and ‘possessory interest’ are multivocal. For instance, the term ‘possessory interest’ is sometimes used in contradistinction to ‘reversionary interest’.
A contrasting view is that A and B each hold the very same kind of interest. William Swadling, for example, would say that B has the same type of right as A, namely, a ‘right to exclusive possession forever’.17 Importantly, on this view, B’s right, like A’s, will survive a loss of possession. The only difference is that A’s right binds B, but B’s right does not bind A. For Swadling, it would be a mistake to regard A or B as the owner, or to regard each of them as an owner: ‘any notion of “ownership” is inconsistent with the fundamental English law principle of relativity of title’.18 This, too, is contentious. Frederick Pollock, for instance, embraced a very different conclusion about the relationship between relativity of title and ownership in English law: possessors, he claimed, are relative owners; they are ‘invested as against the world at large with all the incidents of ownership’.19
Lawyers also disagree over the nature of the ‘title’ that is acquired through taking possession of land. There are many views. A fairly common one is that the protection afforded to possessors is a consequence of rules of evidence or presumption. The possessor acquires a ‘title’ to the fee simple in the sense that her possession will be treated as evidence, or will give rise to a presumption, that she has the fee simple. In Re Atkinson and Horsell’s Contract, 20 for example, Sir Herbert Cozens-Hardy MR said:
the true view is this, that whenever you find a person in possession of property that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute when . . . there is nobody who can challenge the presumption which his possession of the property gives.21
Cozens-Hardy MR thought that this ‘explains’ the protection afforded to a squatter, ie a person who is in adverse possession of land.22 An opposing view is that by taking possession—or, more narrowly, by taking adverse possession—one actually acquires a fee simple estate in the land,
17 William Swadling, ‘Property: General Principles’ in Andrew Burrows (ed), English Private Law (3rd edn, OUP 2013) paras 4.422–4.428. See also Ben McFarlane, The Structure of Property Law (Hart 2008) 146.
18 William Swadling, ‘Trusts and Ownership: A Common Law Perspective’ (2016) 24 Eur Rev Private L 951, 959. See also WW Buckland and AD McNair, Roman Law and Common Law: A Comparison in Outline (FH Lawson ed, 2nd edn, CUP 1965) 68: ‘[English] courts deal with rights to possess where the Roman courts dealt with ownership.’
19 Frederick Pollock, A First Book of Jurisprudence (5th edn, Macmillan 1923) 188.
20 [1912] 2 Ch 1 (CA).
21 ibid 9 (cited with approval in St Marylebone Property Co Ltd v Fairweather [1962] 1 QB 498 (CA) 513 (Holroyd Pearce LJ)).
22 ibid.
comprising rights that bind every person who does not have a better right to possession.23
The debate over the nature of the ‘title’ that is acquired through possession has significant practical implications. If, for example, the ‘title’ that B acquired upon picking up the wallet subsists only for so long as she remains in possession of it, then, if B is dispossessed by C, and C, in turn, is dispossessed by D, B will not be able to recover possession, or a monetary remedy, from D. Furthermore, the proper limits of the principle of relativity of title depend, in part, on the nature of the possessor’s ‘title’. In particular, whether B has certain rights, or whether she is merely presumed to have certain rights, is relevant to: (i) the circumstances in which C, when sued by B, should be able to rely on the fact that A has a ‘better title’ than B; and (ii) the precise effect of allowing C to show that A has a ‘better title’ than B.24
This book seeks to illuminate the principle of relativity of title, and its relationship to possession and ownership, by addressing four main questions. First, what, for the purposes of the rules concerning the acquisition of title, is possession? It is important to address this question, for ‘possession’ is ambiguous and ‘shifts its meaning according to the subject-matter to which it is applied’.25 It is argued in Chapter 2 that the general rule is that one will obtain possession of certain land or a particular chattel if, and only if, one has: (a) exclusive physical control of the land or chattel; and (b) an intention, in one’s own name and on one’s own behalf, to exclude the world from it.26
Secondly, what is the nature of the ‘title’ that is acquired by obtaining possession? Chapters 3, 4, and 5 are concerned with this question. Chapter 3 analyses and compares three significant views of the nature of a possessor’s ‘title’, and examines the distinction between, on the one hand, a person being presumed by a court to have a right or interest in respect of certain land or chattels and, on the other hand, a person actually acquiring a right or interest.
Chapter 4 discusses the nature of the ‘title’ that is acquired through taking possession of land. It argues that the traditional view, which is that ‘mere possession is not a root of freehold title’, is plausible only if one overlooks how the law evolved in the 19th century.27 In the modern law, possession is a ‘root of freehold title’; one can acquire a fee simple estate simply through taking
23 See, eg Turner v Chief Land Registrar [2013] EWHC 1382(Ch); [2013] 2 P & CR 12 [13]–[16] (Roth J).
24 See Chapter 5 (section 5.3.2).
25 R v Thomas Smith (1855) 6 Cox CC 554, 556 (Erle J).
26 See Chapter 2 (section 2.3).
27 See Chapter 4 (section 4.2.2).
possession,28 though the precise scope of the acquisition rule is unsettled.29 This body of law, it is argued, can be properly understood only if one appreciates its history and, in particular, how the legal changes that were brought about by the courts—through a line of cases that includes the famous case of Asher v Whitlock were necessitated by, and intended to further, purposes that Parliament embraced in the first half of the 19th century.30 The current acquisition rule applies irrespective of whether the possessor is in possession of land in respect of which there is a registered estate, and this raises some difficult questions about the relationship between unregistered and registered land.31 It is true, as Martin Dixon has said, that ‘[u]nregistered land is of diminishing importance, legally and practically’;32 but to understand the relationship between the registered land system and the (unregistered) ‘title’ acquired through possession, we must examine the common law rules concerning possession and relativity of title.
Chapter 5 considers the nature of the title that is acquired through taking possession of a chattel. It is argued that the possessor acquires an alienable proprietary interest that is capable of lasting forever, will survive a loss of possession, and includes a right to exclude the world at large.33 The possessor acquires, in other words, a general property interest in possession (as opposed to in reversion). The precise scope of the rule is unclear, but it seems that the rule applies where a person who takes possession of a chattel does not take under a pre-existing right to exclusive possession, or under the grant of a new limited legal interest (eg a pledge). If all this is correct, it is a mistake to claim that the interest that is acquired through possession is ‘possessory’ in the sense that, once acquired, it will generally continue to exist only if the interest-holder remains in possession. It is also a mistake to claim that a possessor is protected solely by rules of presumption, though, as we will see,34 a person who is in possession of a chattel will be able to take advantage of the rule that a possessor, or one who has a right to immediate possession, must be presumed to have ‘absolute and complete ownership’ if a person with a better right cannot be identified.
The third main question is: what are grounds of the rules that confer proprietary interests on possessors? One has an impoverished understanding of a legal rule if one is unaware of its legal basis. It is important, therefore, to ascertain
28 See Chapter 4 (section 4.2).
29 See Chapter 4 (section 4.4).
30 See Chapter 4 (section 4.3.1).
31 See Chapter 4 (section 4.4.2).
32 Martin Dixon, Modern Land Law (11th edn, Routledge 2018) 20.
33 See Chapter 5 (section 5.2).
34 See Chapter 5 (section 5.3).
whether the rules have a legal rationale and, if so, what it is. It is argued in Chapter 6 that the rules are primarily based on the genuine need to provide greater certainty over title to chattels and unregistered land and to secure the position of possessors and their successors in title. But the law’s reasons for applying the rule to cases involving registered land are unclear.35
Fourthly, what is the relationship between relativity of title and ownership? Is relativity of title incompatible with ownership? Or should we regard those who hold competing titles to a thing as independent, or relative, owners? It is argued in Chapter 7 that, despite the fact that English law is a multititular system that recognises relativity of title, land and chattels can be owned.36 It is, however, a mistake to think that an inferior fee simple or an inferior general property interest possesses all the incidents of ownership.37 There are significant differences between the legal positions of the person who has the best title to a thing and the person who has an inferior title. The former, it is suggested, may, depending on the circumstances, have ownership; but the latter does not. This is not a mere theoretical difference with no serious legal consequences: in some circumstances, it matters, in practice, whether one is the owner, ie the holder of the best title.
One significant implication of this book’s analysis of the law concerning relativity of title and the acquisition of proprietary interests through possession is that the architecture of land law and the law of personal property are much closer than many believe. Just as there can be multiple fees simple in respect of certain land, there can be multiple general property interests in respect of a certain chattel. And, within this multititular system, there is a place for ownership: the holder of the best fee simple or the best general property interest may, depending on the circumstances, have ownership. Recognising these similarities between land law and the law of personal property is crucial if we are to relieve the latter of its status as ‘underconceptualized’;38 a mere ‘wallflower’.39
35 See Chapter 6 (section 6.3).
36 See Chapter 7 (sections 7.1 and 7.2).
37 See Chapter 7 (section 7.3).
38 Arianna Pretto-Sakmann, Boundaries of Personal Property: Shares and Sub-Shares (Hart 2005) 3.
39 Peter Birks, ‘Personal Property: Proprietary Rights and Remedies’ (2000) 11 KCLJ 1, 2.
