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Law Notes Personal Property Law Notes

Creation Of Property Rights Notes

Updated Creation Of Property Rights Notes

Personal Property Law Notes

Personal Property Law

Approximately 153 pages

A collection of the best Personal Property Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". This set of notes earned its author a prize in exams. Although this set of notes did not earn its author a 1st in exams, the notes are at a high st...

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Introduction

There are 2 basic means by which B can acquire a property right:

  1. Independent acquisition: B acquires a new property right as a result of his own conduct

  • Formality rules are never relevant in these cases

  1. Dependent acquisition: B acquires an existing property right as a result of another party

exercising a power to give B that right. As there is only one type of property right to things other than land (Ownership), it is impossible for B to acquire a new property right by means of a dependent acquisition.

  • Formality rules may be relevant in controlling A’s power

In the topic of creation, we are concerned with independent acquisition and the creation of new property rights. Dependent acquisition is relevant to the topic of transfer of property rights.

Taking Possession

The core principle is that B can acquire Ownership by taking physical control of a thing. This is the familiar notion in English law of ‘finder’s keepers’. That B’s act of taking physical control gives him an independent property right is clear from Armory v Delamirie.

Armory v Delamirie (1722)- Court of Kings Bench

Facts: C, a chimney sweeper’s boy found a jewel and carried it to D (goldsmith)’s shop to find out what it was. He gave it to the hands of the apprentice who took out the stones to weigh them. After discovering its worth the master offered the boy some money but he refused it, insisting on having back the jewel again. The apprentice delivered him back the socket without the stones.

Held:

  1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.

  2. The action well lay against the master, who gives a credit to his apprentice and is answerable for his neglect

What is the nature of the title acquired?

  • Armory v Delamirie (1722): a right good against all but the rightful owner

  • Strictly speaking should be a right good against all except those who have a better title

  • Even if B commits a wrong by doing so, B’s act of taking physical control imposes a prima facie duty on the rest of the world not to interfere with any use B may choose to make of that thing (i.e. gives a right to exclusive possession)

  • It made no difference that someone other than B may have had a prior property right to the ring. To protect B and promote stability, C, along with the rest of the world, was under a prima facie duty towards B not to interfere with his use of the ring.

Subsistence of Title

  • Once B acquires that right, his right will continue even if B ceases to have physical control of the thing. It is not dependent on continued possession (Costello v CC of Derbyshire)

Costello v Chief Constable of Derbyshire (2001)- CA

Facts: Police force seized from C a motor car which they believed was stolen and retained it since the owner was unknown. C brought action against CC for delivery up and damages for unlawful detention of the car.

Held (Lightman J): C was entitled to the return of the car and damages

  • “Three general propositions of law are clearly established by Webb v CC of Merseyside Police (2000):

  1. The fact of possession of a chattel of itself gives to the possessor a possessory title and the possessor is entitled to rely on such title without reference to the circumstances in which such possession was obtained: his entitlement to do so is not prejudiced by the fact that he obtained such possession unlawfully or under an illegal transaction. His claim can only be defeated by proof of a title superior to his possessory title.

  2. In the case of competing claims to ownership (in the case of personalty as in the case of realty), titles are relative and the issue falls to be determined by reference to the relative strengths of the two claims and the party with the better title (however frail it may be) is entitled to succeed.

  3. The statutory power of the police conferred by section 19 of the 1984 Act to seize goods and by section 22 of the 1984 Act to retain them so long as is necessary in all the circumstances places in suspension or temporarily divests all existing rights to possession over the period of the detention, but does not otherwise affect those rights or vest in the police any permanent entitlement to retain the property in the police. The limited right of the police to retain property for the statutory purpose and their obligation thereupon to return it to the “owner” are unaffected by any perceived public policy consideration that the fruits of his criminal activities ought to be withheld from a criminal.”

  • “In my view, as a matter of principle and authority possession means the same thing and is entitled to the same legal protection, whether or not it has been obtained lawfully or by theft or by other unlawful means. It vests in the possessor a possessory title which is good against the world save as against anyone setting up or claiming under a better title. In the case of a theft the title is frail, and of likely limited value, but none the less remains a title to which the law affords protection.”

The result in a simple case is therefore that a dispute between two claimants as to who has the better right to possession will be resolved in favour of the person whose possession is earlier in time.

What is the nature of possession in this context?

2 elements of possession:
(1) Corpus possedendi- physical control or power over the object

(2) Animus possidendi- an intention to possess

  • Wilson v Lombank referred to the right to possession, not factual possession. It therefore seems that possession can consist of both factual and legal possession.

A sufficient degree of physical control is necessary and this has been taken strictly by the courts:

  • No possession of fish in Young v Hichens because he did not have control over it

  • Pierson v Post- mere pursuit it not enough, need to have control over the animal to...

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