TOPIC 2.1 - POSSESSION AND TITLE
WHAT IS POSSESSION?
o Physical concept referring to occupation of land or control over an object/thing for
oneself
o Components of possession:
• Factual control
• Intention to possess
o To prove that you are the possessor, you must have absolute power of control to the
exclusion of others rather than temporary or fleeting control
o Possessor must be able to exclude others
o Degree of control required depends on nature of object & circumstances
o May arise in consensual or non-consensual way:
• Consensual
▪ Possession is consented to and limited or temporal in nature (lease/bailment)
coupled w/ right to reclaim the goods
• Non-consensual
▪ More enduring possession w/o consent of owner
Methods in which possession may be acquired:
• Consensual (sale, lease, gift, etc.)
• Misplaced/lost goods (finder possesses)
• Goods never previously possessed (discovery)
• Stolen goods - even wrongful possession is protected
LEGAL CONSEQUENCES OF POSSESSION
o Possession of chattel grants a legal title upon the holder - an enforceable right
o Possession gives rise to right to defend possession
Hierarchy of title:
True Owner
Possessor
• Has proprietary title
• Has possessory title
• Has superior claim to object than
possessor
• Possessor's title is enforceable
against the whole world, except
the owner
Proprietary title is stronger than possessory title
Hannah v Peel
Facts
• Hannah found a brooch in a remote part of the house (which belonged to Peel)
• House was used by the military (Peel never moved into the house which he bought)
• Hannah handed brooch to Police who gave it to Peel (who sold it)
• Hannah sued to regain possession of the brooch or its value
• Peel asserted that he had superior title b/c the brooch was found on his property
Issue
• Who held possessory title over brooch?
Held
• Finder of brooch was held to be in possession despite the fact that the house didn't
belong to finder & true owner of brooch couldn't be located
