The Role Of Possession In Australian Land Law

I. Introduction
The concept of possession holds importance in Australian land law; it is said to make up ‘nine tenths of the law.’ To legally possess property, the person must have possession under the rules of the law. Possession intends to define intention and position of a relationship of control by a person over land or object.
II. Understanding Possession
A. Land
The legal definition of land is the buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land. Additionally, it also includes whether they are held apart from the surface of the land, a building or part of a building. The definition is important because a person can take possession of land; understanding
The ownership of real property includes the ground itself, but also the subsoil and the airspace above. However, the doctrine of tenure works against any concept of absolute ownership in land. The owner of land only has ownership to the extent that allows reasonable use and enjoyment of the land: Lord Bernstein of Leigh v Skyviews & General Pty Ltd. In contrast, the doctrine of estate and decision in Wik Peoples v Queensland, represent a strong movement away from doctrine of tenure; but if tenure was abolished, the doctrine of estates would be unnecessary. The law of possession has consequently changed the traditional meaning of ownership and consequently divided the concepts of possession and ownership.
C. Possession
Possession is broadly defined as the physical control a person intentionally exercises towards a thing. The High Court in Moors v Burke, stated that in possession “exclusiveness is essential.” Without possession is it unlikely that a person will have a proprietary claim. Possession has two essential elements; firstly, the person must have physical control and secondly a person must have the intention to possess.
Slade J in Powell v McFarlane outlines the principles that underlie the concept of possession. Firstly, the owner of the land with paper title is the true owner and in possession of that land. However, the law can give possession to a person who can establish on the basis
This exclusivity is determined by the conditions by which the land is normally used or enjoyed. The intention to possess must next be established; it must be to exclude the world at large, including the owner. The Court will explore the possessor’s intention and if it was made obvious and clear to the world at large. Although Powell was unsuccessful in his claim for possession, this case has evidently established the possession of land further by strictly applying the elements and exclusivity test.
D. Possessory Title
The law of possession has had a critical role in establishing title; it works in the favour of the possessor. The necessary elements of possession are physical control of the object (factum possidendi) and the intention to exclude others from displacing that control (animus possidendi). In direct relation to possession of land, it requires (1) evidence and a source of a right to possession of that land; and (2) an interest in land, also known as “estates in land.”
In Amory v Delamirie, the finder of the jewel found to have greater proprietary rights than all others, except the true owner, to keep the jewel. Possession has good title against all but the true owner: Asher v Whitlock, Perry v Clissold. The Limitations Act allows an owner’s to be title taken away in the circumstances