Possession and Title: Three Views

This chapter introduces the enquiry into the nature of the title acquired through possession. It analyses and contrasts three views of the nature of the possessor’s title and, in so doing, brings to light two important distinctions. First, there is a distinction between accounts of the law that maintain that the law actually confers on a possessor an interest of some kind in the chattel or the land, and accounts that assert that the possessor is to be presumed to have a certain interest. Secondly, there is a distinction between accounts that claim that the possessor acquires a mere right of possession in respect of the land or chattel, and accounts that assert that the possessor acquires an alienable proprietary interest. The chapter argues that, while some commentators have regarded these distinctions as muddled or illusory, they are, in fact, real and important.

Possession and Title to Land

This chapter examines 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 source of freehold title, is plausible only if one overlooks how the law has evolved. Today, one can acquire a fee simple estate simply through taking possession. The chapter seeks to marshal new arguments in support of this claim. Its main strategy is to analyse the incidents of the possessor’s interest with a view to showing that it has the core features of a fee simple estate. It also considers the scope of the rule and analyses a number of objections.

Possession

This chapter examines the nature of the possession that gives rise to title. It explains that ‘possession’ is ambiguous, particular senses of ‘possession’ are vague, and that the meaning of ‘possession’ shifts from context to context. It argues that, for the purposes of the rules concerning the acquisition of title, 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.

The Grounds of Relative Title

Since it is not possible to fully understand a rule unless one understands its grounds, this chapter seeks to identify the grounds of the rules that confer proprietary interests on possessors. It argues that there is a genuine obligation-based reason for conferring a right to exclude on possessors who owe a special duty to keep the chattel safe, but that this is not, and has not been regarded by the law as, a reason to institute rules that confer general property interests on possessors generally. The chapter goes on to argue that the rules that confer proprietary interests on possessors are primarily based on the genuine need to provide greater certainty over title to chattels and (unregistered) land and greater security to those who possess or deal with such things.

Introduction

This chapter introduces the principle of relativity of title and the principle that possession is a source of title. It also introduces the four questions that the book is concerned with: (1) What, for the purposes of the rules concerning the acquisition of title, is possession? (2) What is the nature of the title acquired through possession? (3) What are the grounds of relativity of title? (4) What is the relationship between relativity of title and ownership? The chapter explains why these questions matter and identifies some common answers. It also summarises the book’s main arguments and provides an overview of the other six chapters.

Possession and Title to Chattels

This chapter considers the nature of the title that is acquired through taking possession of a chattel. It argues that the possessor acquires a general property interest in respect of the chattel. This is 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. The chapter explains that this argument is compatible with (a) the law concerning the jus tertii; and (b) the rule that a possessor must be presumed, for certain purposes, to be the ‘absolute and complete owner’ of the chattel, unless a person with a better right can be identified.

Ownership and Relativity of Title

This chapter examines the relationship between relativity of title and ownership. It is argued that, despite the fact that English law is a multititular system that recognises relativity of title, land and chattels can be owned. But it is a mistake to think that an inferior fee simple or an inferior general property interest has all the incidents of ownership. There are important differences between the legal position of a person who has the best title to a thing and a person who has an inferior title. The former, it is suggested, may have ownership, but the latter does not.