LLB220 Lecture Notes - Lecture 3: All England Law Reports, Equitable Remedy, Stra
Week 3 – Possession
Protection of Property Interests in Land
Trespass to land – tort
• Intentional unauthorized entry. Requires actual physical entry
• Trespass can be committed by a person or object
• May occur it was entry with permission, but permission is withdrawn
• No defence of mistake or necessity
• No need to prove damages
• Where the trespass is so extensive that it amounts to possession, the trespasser has
a possessory title to the land
• Possession established by physical control to an extent others are excluded and an
intention to possess
• Trespasser can assert this title against all the world except the true owner
Title to sue – General
• Tort of trespass concerned with protecting actual possession of the land
• Persons out of possession of the land at the time of wrongful invasion cannot sue
• A licence to occupy land without a right of exclusive possession will not give the
licence to sue in trespass
• If the licence is coupled with the grant of an interest in land, the owner of the right
can sue in trespass
Title to sue – Dispossessors
• A person who has dispossessed another can sue in trespass
• Defendant cannot set up the dispossessed owners title as a defence → i.e.
defendant cannot plead jus tertii
• Dispossessed owner can sue the squatter
• Trespass by relation → can sue anyone who has trespassed since original
dispossession
• The fact that the trespasser has forcibly entered the property and therefore may be
criminally liable has no bearing on whether they have possession and therefore a
possessory title
Recovery of Possession
• S 20 Civil Procedure Act (2005) (NSW) → a person who has been dispossessed may
make a claim for judgment for possession of land
- i.e. he/she has a better right to possession of land than the defendant
• Establish absolute ownership: registered proprietor of Torrens title land; establishing
an unbroken chain of documentary old system title back to the original Crown grant;
having been in adverse possession for the statutory period (usually 12 years)
• Plaintiff may seek mesne profits from trespasser for the loss of land → include rental
value for period of dispossession and lost interest on a premium offered by a
perspective tenant
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• Court can order a stay od execution of the writ for possession
• rr 1.12 and 36.5 Uniform Civil Procedure Rules 2005 (NSW) → judgment for
possession a specify a time for compliance
Self-help
• Can use only so much force as reasonably necessary to remove the trespasser
(Hemmings v Stoke Poges Golf Club)
• Affirmed by NSWCA in MacIntosh v Lobel
• Exercised before or after the institutions of Court proceedings
- Note: after is if the Court determines the squatter a trespasser and has no right
to remain
• Plaintiff may obtain a writ of possession and have it executed by the sheriff
• No right of physically recovering possession from over holding tenant after the
termination of a residential tenancy agreement in the absence of a judgment,
warrant or order of court or NSW Civil and Administrative Tribunal (Consumer and
Commercial Division)
• S 120 Residential Tenancies Act 2010 (NSW) → offence to enter premises without
such authorisation
Trespass to land – statutory positions
Forcible entry
• Act of trespass may give rise to criminal penalties as well as liability in tort
• S 18 Imperial Acts Application Act 1969 (NSW) → no person shall make any entry
into any land except where such entry is given by law and, in such case, with no
more force than is reasonably necessary
- Doest restrit oers right to self-help
Inclosed lands
• S 4(1) Inclosed Lands Protection Act 1901 (NSW)
• Ilosed lad → any land inclosed or surrounded by a fence, wall or other erection
• laful euse s 4 ot estalished a perso proig the had a istake elief
- only a defence in the circumstance that if the beliefs were true, give that person
a lawful right to enter
• Claim to right of possession is a lawful excuse but only if made bona fide and with
reasonable foundation on substantial grounds
Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the
consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after
being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable
to a penalty not exceeding:
a) 10 penalty units in the case of prescribed premises, or
b) 5 penalty units in any other case.
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Chattels
Ownership and Possession
Two components of possession:
1. Animus possidendi → an intention to possess
2. Factum → physical control
• Possession is hard to define
• Possession is a legal concept – distinct from de facto control
- E.g. someone who has stolen goods has possession but not ownership and the
possession is not legal
• I.e. ownership and possession are not the same thing but are closely linked
• Legal possession, wrongful possession
• You can have ownership without possession and possession without ownership, e.g.:
- You leae oes of thigs i our auts garage for the suer aut has
possession)
- Things acquired on hire-purchase
- “oeoe stealig soethig doest hae oership
• A person in lawful possession of an item may have enforceable rights against others
ee if the aret the oer
• You can own something but not have lawful possession → fragmented propriety
rights e.g. hire-purchase
Chapman Bros v Verco Bros and Co Ltd (1933) 49 CLR 306
Facts
Farmers delivered bags of wheat, delivered in unidentified bags and identical to those which other farmers
delivered wheat to company. Terms of transaction required company to buy and pay for wheat or failing request,
return an equal quantity of what of the same type – no obligation to return identical bags.
Judgment
• The question was whether this was a sale of goods contract in terms of the ownership of the bags. The
court held it to be an agreement of sale within Section 2 (1) of Cap 31
• One of the difficulties is that where goods are given to the buyer before the buyer has paid for those
goods, where this happens, then we say that he is a buyer in possession because the seller has agreed to
transfer the property.
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find more resources at oneclass.com
Document Summary
If the licence is coupled with the grant of an interest in land, the owner of the right can sue in trespass. Self-help: can use only so much force as reasonably necessary to remove the trespasser (hemmings v stoke poges golf club, affirmed by nswca in macintosh v lobel, exercised before or after the institutions of court proceedings. Commercial division: s 120 residential tenancies act 2010 (nsw) offence to enter premises without such authorisation. Inclosed lands: s 4(1) inclosed lands protection act 1901 (nsw) Two components of possession: animus possidendi an intention to possess, factum physical control, possession is hard to define, possession is a legal concept distinct from de facto control. E. g. someone who has stolen goods has possession but not ownership and the possession is not legal. Chapman bros v verco bros and co ltd (1933) 49 clr 306.
