Title Versus Possession
Title versus Possession - *V.Divya
Scheme:-
In the constantly changing society, the emergence of law has led to such a situation where the title of the property is coming in conflict with the possession. This modification in law is to protect the person in possession from being subjugated by the owner of the property (i.e., title holder) by providing certain rights as well as duties imposed on both the title holder as well as the person in possession.
In my project, I will be concentrating on the changes that have taken place with times regarding the importance of title of a property and the possession of it in the jurisprudential sense. When does both these rights come in conflict to each other and which will prevail over the other in case of conflict supported with various decisions of the Court under different circumstances regarding the issue.
Chapterisation:-
1. Introduction 2. History 3. Title * Quiet title * Chain of title * Equitable versus legal title 4. Possession * Adverse possession * Effect of adverse possession * Importance of possession * Right of possession * Possession of stolen goods 5. Conflict between title and possession * Quiet title Vs Adverse possession 6. Similarities and Distinctions 7. Tenant and owner relationship 8. Conclusion
Title versus Possession
Jurisprudence project report
A.P. University of Law Visakhapatnam
Submitted by V.Divya Roll.No:200912
Acknowledgment Firstly, I would like to thank our Chancellor Prof. A.Lakshminath garu for providing me an opportunity to do a project on this topic and then I would like to thank our Vice-Chancellor Prof. R.G.B.Bhagavat Kumar garu for the valuable suggestions of him regarding how to approach law in a realistic way. I would also thank our Registrar Prof. A. Subrahmanyam garu for his extended lectures regarding how to do a project report and for guiding us in how a student should approach his studies and achieve knowledge for modulating themselves apart from the motive of earning money. Now, I would like to thank our lecturer Satya Sri for her valuable suggestions in completing my project successfully. Finally I would like to thank my parents who supported me a lot in completing my projects successfully. I would also thank my friends for their valuable suggestions. I would also thank all the others who either directly or indirectly helped me in completing my project as a successful event.
Table of contents 1. Introduction 2. History 3. Title 4. Quiet title 5. Chain of title 6. Equitable versus legal title 7. Possession 8. Adverse possession 9. Effect of adverse possession 10. Importance of possession 11. Right of possession 12. Possession of stolen goods 13. Conflict between title and possession 14. Quiet title Vs Adverse possession 15. Similarities and Distinctions 16. Tenant and owner relationship 17. Conclusion
Chapter I
Introduction
In my project, I will be focusing on few important concepts related to the project such as title, possession etc. in brief and when both these concepts come in conflict with and in case of a conflict which prevails over the other and under what circumstances such situation arises. First chapter deals with the introduction of the title and the relevancy of the topic. Second chapter deals with the history from where the concept of title and ownership has arised and how these concepts has the origin in the beginning and the gradual development of these concepts with the change in time. Third chapter deals with title. It gives a brief idea on the concept “Title”, chain of title and how is it important in case of real property and in case of chain of trademarks, copyrights and right of publicity. It further deals with quiet title, grounds for quiet title and limitations on it.
Fourth chapter deals with the possession and in particular regarding the adverse possession and the effect of adverse possession. It further deals with the importance of possession and right of possession along with the legal provisions available in India to protect the person with possession. It will also deal with the position of a person with possession of stolen goods.
Fifth chapter deals with the conflict between title and possession in particular with quiet title and adverse possession. It will be focussed on the present scenario in which the title comes in conflict with possession.
Sixth chapter deals with the similarities and distinctions of title and possession.Seventh chapter deals with the tenant and owner relationship.
Eighth chapter was the conclusion of the whole project regarding how the law has finally dealt with the problem regarding the conflict that arised in day to day life with regard to the possession and title.
Chapter II
History
In ancient Hindu law, possession and ownership were two different conceptions. The law of ‘prescription’, ‘bailment’ and ‘sale without ownership’ were based on the distinction between possession and ownership. According to Manu, the possession of the immovable properties for 20 years and of movables for 10 years gives titles by prescription. Thus, a long possession (prescription) could ripen into ownership.
At common law, where entitlement to possession of land was in dispute, the person claiming a right to possession was not allowed to allege that the land had come into his possession in the past at a time before the reign of Henry I. The law recognized a cutoff date going back into the past, before which date the law would not be interested. There was no requirement for a defendant to show any form of adverse possession. As time went on, the date was moved by statute, first to the reign of Henry II and then to the reign of Richard I. No further changes were made of this kind.
By the reign of Henry VIII the fact that there had been no changes to the cutoff date had become very inconvenient. A new approach was taken whereby the person claiming possession had to show possession of the land for a continuous period, a certain number of years (60, 50 or 30 depending on the kind of claim made) before the date of the claim. Later statutes have shortened the limitation period in most common law jurisdictions. However, in the Roman law we find a clear cut distinction between the concept of dominium and Possessio. Dominium meant an absolute right to a thing. Possessio indicated only a physical control over the thing. The Roman law influenced the English law as a result of which the concepts such as possession and title arised in the present day scenario.
Chapter III
Title
The term “title” is derived from the term “titulus” of Roman law and “Titre” of French Law. Title is the right of ownership with legal protection. According to Salmond, title is the 5th element of a legal right. He says “Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner.” He says “The title is the defacto antecedent of which the right is the dejure consequent.” According to Lord Blackburn, “The first question which arises is whether on these facts the plaintiff had any title in the ship… No title in the ship was conveyed.” Classification of titles:- Salmond divides the Vestitive facts into two types as follows: * Investitive facts or titles * Divestitive facts Vestitive facts Investitive facts or titles Divestive facts Original titles Derivative titles Alienative facts Extinctive facts
Quiet title
An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party 's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title.
This legal action is "brought to remove a cloud on the title" so that plaintiff and those in privity with him may forever be free of claims against the property. The action to quiet title resembles other forms of "preventive adjudication," such as the declaratory judgment.
Grounds for a quiet title action or complaint
It comprises a complaint that the title of a parcel of land or other real property is defective in some fashion, typically where title to the property is ambiguous.
Other typical grounds for complaint include: * adverse possession where the new possessor sues to obtain title in his or her own name; * fraudulent conveyance of a property, perhaps by a forged deed or under coercion; * Torrens title registration, an action which terminates all unrecorded claims; * treaty disputes regarding the boundaries between nations; * tax taking issues, where a municipality claims title in lieu of back taxes owed (or a subsequent purchaser of land at a tax sale files action to gain insurable title); * boundary disputes between states, municipalities, or private parties; * surveying errors * competing claims by reverters, remainders, missing heirs and lien holders (often arising in basic foreclosure actions when satisfied liens are not properly discharged from title due to clerical or recording errors between the county clerk and the satisfied lien holder)
Limitations
Unlike acquisition through a deed of sale, a quiet title action will give the party seeking such relief no cause of action against previous owners of the property, unless the plaintiff in the quiet title action acquired its interest through a warranty deed and had to bring the action to settle defects that existed when the warranty deed was delivered.
A quiet title action is also subject in many geographic jurisdictions, to a Statute of Limitations. This limitations of action is often 10 or 20 years.
Chain of title :- A chain of title is the sequence of historical transfers of title to a property. The "chain" runs from the present owner back to the original owner of the property. In situations where documentation of ownership is important, it is often necessary to reconstruct the chain of title. To facilitate this, a record of title documents may be maintained by a registry office or civil law notary.
Chain of title for real property
Real estate is one field where the chain of title has considerable significance. Various registration systems, such as the Torrens title system, have been developed to track the ownership of individual pieces of real property. In real estate transactions in the United States, insurance companies issue title insurance based upon the chain of title to the property when it is transferred. Title insurance companies sometimes maintain private title plants that track real estate titles in addition to the official records. In other cases, the chain of title is established by an abstract of title, sometimes, although not always, certified by an attorney.
Chain of title for copyrights, trademarks, and rights of publicity
The chain of title involves the series of documentation which establishes proprietary rights in a film. The chain also applies to compilations in other fields, where many people have contributed to the project, thus acquiring authorship rights, or where materials were culled from many sources. Chain of title is extremely important to film purchasers and to film distributors, as it establishes the veracity of the owner 's proprietary rights (or rights under license) in the intellectual property in a film, book or encyclopedia.
Chain of title documentation can include: * copyright clearances on music from the regional collecting society, and to a less common extent, footage of other films; * trademark clearances; * talent agreements, which should incorporate a legal release from the talent, be they actors (including crowds), directors, cinematographers, choreographers, or others, to use their works, images, likeness and other personality rights in the film; * proof of errors and omission insurance (a special form of insurance for motion picture producers which covers omissions in obtaining adequate chain of title).
EQUITABLE TITLE :– This type of title refers to the actual enjoyment and use of a property without absolute ownership. It is the interest in the property held by a buyer (vendee) under a purchase contract, contract-for-deed, or an installment-purchase agreement. The buyer (vendee) has the right to demand that legal title be transferred upon payment of the full purchase price after the final installment payment has been made. This interest is transferable by deed, assignment, subcontract, or mortgage. If the property increases in value the vendee gets the increased valuation of the property; if the property value declines the vendee in turns suffers that as well.
Equitable does not give the actual legal title to the property like it would if a buyer were using a mortgage. Equitable Title means giving the buyer an “equitable position” in the property. The legal title is conveyed only after the buyer has satisfied the contract.
LEGAL TITLE :–
Legal title is the ownership of property that is enforceable in a court of law, or one that is complete and perfect in apparent right of ownership and possession, but that unlike equitable title, carries no ‘beneficial interest’ in the property.
Ownership:-
The concept of ownership is of both legal and social interest. Idea of ownership did not evolve in the same way in relation to land and chattels. Land used to be held in feudal tenure, which was a system of land holding in return for service. This holding was known as ‘seisin’ which originally meant no more than possession and denoted the state of affairs that made enjoyment possible. If the person seised was dispossessed, he had to rely on his seisin to get back on the land, and for this the old remedy was the writ of right in which success depended on the claimant being able to establish a superior title to that of the possessor. In the non-legal sense, ownership may be defined as the right of exclusive control and disposal over a thing at will. In legal parlance, ownership can be defined as the right by which a thing belongs to an individual to the exclusion of all other persons.
Ownership denotes the relationship between a person and an object forming the subject matter of his ownership. Owner will be possessed with certain rights such as: 1. Right to possess the thing which he owns (Right in the strict sense). 2. Right to use and enjoy the thing owned. 3. Right to manage i.e., right to decide how it shall be used. 4. Right to income from such property. 5. Right to consume, destroy or alienate the thing. 6. Residuary right i.e., the rights remaining when all the lesser rights have been given away. 7. Characteristic of being indeterminate in duration. The term ownership is not strictly applicable to English law, because in an action concerning title to property the plaintiff need only prove that he has a better title than the defendant, not that he has the best of all the titles. Case-law:-Raymond Lyons & Co. Ltd. Vs. Metropolitan Police Commissioner Facts of the case:-X left a ring with jewelers for valuation and they handed it to the police. X did not return and no one claimed it. Accordingly, the jewelers alleged that they were ‘owner’ within the Police (Property) Act, 1897 Section 1(1), since they had a better title against the whole world except the true owner. Judgment: - The court rejected the claim saying that ‘owner’ in the Act had its popular meaning and that they were not ‘owner’. Definition:- According to keeton, “The right of ownership is a conception clearly easy to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of the two views are, Austin and Salmond. According to one view, ownership is a relation which subsists between a person and a thing which is the object of ownership. According to the second view, ownership is a relation between a person and a right that is vested in him.” According to Austin, “Ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature.” Full ownership is defined as “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.” Salmond says ownership denotes the relation between a person and an object forming the subject matter of his ownership. Ownership in Indian law:- Law in India, like other countries, recognizes the right to ownership in property. It is a guaranteed and protected right by the constitution. However, no one claim absolute right of ownership over a thing in India. The right of ownership is subjected to by many statutory laws and regulations, Eg:- Land reforms legislation restricting use, sale and transfer of land etc. Case-Law:- Akumella Panchayat Board Vs Venkata Reddy Facts of the case:- A public latrine was under the control of the Panchayat Board. While carrying out certain repairs, the board was obstructed by the defendant who had no title to the latrine. Judgment:-In this case it was held that the Panchayat Board were entitled to a declaration of their possession and an injunction restraining the trespasser from interfering with the work of the board in carrying out the repairs. The fact that the Panchayat had no legal title to the site on which the latrine stood, was immaterial as the defendant himself was not the owner of that site.
Chapter IV
Possession:-
In law, possession is the control which a person intentionally exercises towards a thing. In all cases, to possess something, a person must have an intention to possess it. The term ‘possession’ expresses the physical relation of control exercised by a person over a thing. Like ownership, the possession of things is commonly regulated by states under property law.
Possession is a conception which is only less important than contract. But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law. Possession is protected as a part of the law of property.
Definition:-
Salmond says- “the continuing exercise of a claim, to the exclusive use of a thing, constitutes the possession of it”.
Bentham says defining the concept of possession is like defining the geometric conception of roundness. Absolute roundness cannot be defined and so with this concept.
Maine defines possession as physical detention coupled with the intention to hold the thing detained as one’s own. Pollock has given a different view on the meaning of possession. He said: “in common speech, a man is said to possess or to be in possession of anything on which he has the apparent control, or from the use of which he has the apparent power of excluding others. The Supreme Court has opined in the case of Superintendent v. Remembrance R that “Possession is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical definition of possession uniformly applicable to all situations in context of all statutes.”
Classification of possession:-
Possession can be classified into various types based on the definitions given by various jurists:- 1. Immediate possession 2. Mediate possession 3. Representative possession 4. Concurrent possession 5. Derivative possession 6. Adverse possession 7. Duplicate possession
Why is possession protected by the law?
There are many reasons for protection of possession as follows:
Protection of possession aids the criminal law by preserving the peace. According to Savigny, the protection of possession is a branch of protection to the person. Possession is protected in order to obviate unlawful acts of violence against the person in possession. Interference with possession inevitably leads to disturbance of peace. Order is best secured by protecting a possessor and leaving the true owner to seek his remedy in a court of law. Justice Holmes writes: "Law must found itself on actual facts. It is quite enough therefore for the law that man, by an instinct which he shares with the domestic dog and of which the seal gives the most striking example, will not allow himself to be dispossessed either by force or by fraud, of which he holds, without trying of getting it back again. To obviate the violence resulting from this, possession is protected by the law.
According to Ihering, possession is ownership on the defensive. The possessor must be protected and he must not be asked to prove his title. Most of the possessors are the rightful owners and it is desirable that they should be protected. Possession is the evidence of ownership. Possession is patent to all. Possession is the nine points of law and hence protection should be given to possession.
According to Holland: "The predominant motive was probably a regard for the preservation of the peace."
The view of Windshield is that, protection to possession is given in the same way as protection is given against injuria or the violation of a legal private right. Possession is protected as a part of the law of tort. Law protects possession not only from disturbance by force but from disturbance by fraud. The protection thus afforded is part of the law of tort.
According to the philosophical school of jurists, possession is protected because a man by taking possession of an object has brought it within the sphere of his will. The freedom of the will is the essence of personality and has to be protected so long as it does not conflict with the universal will i.e., State. As possession involves an extension of personality over the object, it is protected by law. As the reputation of a person is protected against defamatory attack, his possession is protected as he has projected his personality over the object of possession.
Kant says that men are born free and equal. Freedom of will is the essence of man and it must be recognised, respected, protected and realised by all governments. Possession is the embodiment of the will of man. By taking possession of a thing, a person incorporates his will and personality in that thing. Possession is the objective realization of free will and the will of a person as expressed in possession must be protected.
Cairns writes: "Possession was originally protected to aid the Law of Crime and Tort; it came at length to be protected in order to aid the law of property."
In the early stages of the development of the law of property when proof of title to property was difficult, it was considered to be unjust to cast on a person whose possession was disturbed the burden of proving a flawless title. Therefore, the law presumed that the possessor was the owner until a superior title was shown to exist in someone else. In this way, possession came to be protected by law.
The view of Salmond is that distinct possessory remedies are not required and the punishments of criminal law and the sanctions of the Law of Tort are sufficient to prevent the evils of violent self-help. An owner who has dispossessed a trespasser need not be required to deliver possession to the trespasser and recover it back in an independent proprietary action. As for assistance rendered to the law of property, the modern law of evidence can adjust the burden of proof suitably and avoid the duplication of proprietary and possessory remedies.
While these considerations are entitled to great weight, expediency requires that possession as such must be protected. In India, a compromise has been made between proprietary and possessory remedies. If the dispossessed owner brings his suit promptly within six months, he is allowed to succeed merely on proof of possession even against the true owner. If he brings his suit beyond that period, he is non-suited if the defendant proves a superior title in himself.
What are possessory remedies and why are they recognized?
Possessory remedies are those which exist for the protection of possession even against ownership. Proprietary remedies are those which are available for the protection of ownership. In many legal systems, possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can recover it from any person whatsoever on the ground of his possession. Even the true owner, who retakes his own, must first restore possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.
There are many reasons why possessory remedies are recognized-
Possession often amounts to evidence of ownership. A finder of goods becomes its owner against the whole world except the true owner. This is on the ground that he is in possession of it. If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the right of the original owner is extinguished. Another reason for possessory remedies is to be found in the serious imperfection of early proprietary remedies. Those were cumbersome, dilatory and inefficient. Every claimant had to undergo many hardships. The position of the plaintiff was a very difficult one and no person was to be allowed to occupy the advantageous position of the defendant. It was under these circumstances that it was provided that the original state of affairs must be restored first. Possession must be given to him who had it first and then alone the claims of the various persons could be settled. Under the old legal systems, it was extremely difficult to prove one’s ownership and recover the property on the ground of title. Very often, small technicalities resulted in the defeat of one 's title to property.
Another reason for possessory remedies is that it is always more difficult to prove ownership than to prove possession. Hence it is unjust that a person who has taken possession of property by violence should not be allowed to transfer the heavy burden of proof from his own shoulders to that of his opponent. He who takes a thing by force must restore it and he is free to prove that he is the owner.
Some possessory remedies in Indian law:-
The Indian legislators have taken care of providing possessory remedies and it is reflected in various statutes. Some of the statutory provisions are being discussed below in this chapter.
Specific Relief Act, 1963
Sec.5 of the Specific Relief Act deals with action for recovery of possession of specific immovable property based on title. The essence of the section is that whoever proves a better title in a person entitled to possession. The title may be on the basis of ownership or possession. The purpose behind Sec.5 is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law.
Sec.6 of the same act provides that if any person is disposed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit, recover possession thereof.
Sections 5 & 6 give alternative remedies and are mutually exclusive. Under section 5 a person dispossessed can get possession on the basis of title whereas under section 6 a person dispossessed may recover possession merely by proving previous possession and subsequent wrongful dispossession.Sections 7 & 8 of the same act provide for methods for recovery of possession of some specific movable property.
Code of Criminal procedure, 1973 Section 145 of the Cr. P. C. lays down the procedure where a dispute concerning land or water is likely to cause breach of peace. Commenting upon the scheme of Section 146, the Supreme Court has observed that the object of the section no doubt is to prevent breach of the peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court.
Section 456 of the same code provides that when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the court may within one month after the due date of conviction, order that possession of the same be restored to that person.
Sale of Goods Act, 1930
Section 47 of the Act provides for sellers’ lien. Lien is the right to retain possession of goods until certain charges due in respect of them are paid. The unpaid seller has the right to retain the goods until he reserves their price. Section 47 provides that the unpaid seller of goods who is in possession of them is entitled to retain his possession until payment or tender of the price in following cases- * Where the goods have been sold without any stipulation as to credit. * Where the goods have been sold on credit, but the term of credit has expired * Where the buyer becomes insolvent.
Section 48 of the same act provides for part delivery. It reads-
“48. Part delivery.—Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien.”
Thus, where an unpaid seller has delivered a part of the goods, he may exercise his lien on the remainder. The party, who alleges that part delivery was intended to operate as delivery of the whole, has to prove that fact.
Indian Contract Act, 1872
Sec.168 of the ICA, 1872 provides for the right of finder of goods. It reads:
168.Right of finder of goods; may sue for specific reward offered:-
The finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner; but he may retain the goods against the owner until he receives such compensation; and, where the owner has offered a specific reward for the return of goods lost, the finder may sue for such reward, and may retain the goods until he receives it. Case-law: - Hannah Vs Peel Facts of the case:- The plaintiff was serving in the Royal Artillery. He was stationed in a house requisitioned by the government and he accidentally found a brooch in an upstairs room occupied by him. The brooch was handed over to the police. The police were not able to find out the rightful owner and delivered it to the defendant who was the owner of the house. The defendant sold the jewel for $66. A suit was brought for the recovery of the brooch or its jewel. The plaintiff claimed the jewel as the finder. The contention of the defendant was that he was entitled to it as the owner of the property on which it was found. The defendant was never in possession of the house and had no knowledge of the brooch until it was brought to his notice. Judgment:-In this case, it was held that the defendant had neither de facto control nor the animus of excluding others and as such had no possession. The plaintiff was entitled to the brooch or its value since his claim as finder prevailed over all but the rightful owner.
i.e., Rights of finder of lost goods prevail even against the whole world except the rightful owner. Case-Law:-Bridges Vs Hawke worth Facts of the case:- The plaintiff found a bundle of bank notes on the floor of a shop. The notes had been dropped there by a stranger by accident. The party who lost them could not be found. Judgment:-It was held that the plaintiff as the finder had property in the notes as against everyone but the true owner. The defendant had no prior possession which could prevail over the claim of the plaintiff.
Furthermore, s. 169 of the same Act reads:
169.When finder of thing commonly on sale may sell it:-
When a thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses, upon demand, to pay the lawful charges of the finder, the finder may sell it-
(1) when the thing is in danger of perishing or of losing the greater part of its value, or,
(2) when the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.
SS. 168 & 169 protect the interest of the finder in 2 ways- s. 168 allows the finder to retain the goods against the owner until he receives compensation for trouble and expense. Further, where the owner has offered a specific reward for the return of the goods lost, the finder may sue for such reward, and may retain the goods until he receive it.
S. 169 allows the finder to sell the goods in certain circumstances. Where the thing found is commonly the subject of sale and if the owner cannot be found with reasonable diligence, or if he refuses to pay the lawful charges of the finder, the finder may sell the goods in the following cases:
1. when the thing is in danger of perishing or of losing greater part of its value,
2. or when the lawful charges of the finder, in respect of te thing found, amount to 2/3 of its value.
For it has been held that, if a stick of timber comes ashore on a man 's land, he thereby acquires a "right of possession" as against an actual finder who enters for the purpose of removing it.
Adverse Possession
Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time. Through this, one may acquire property without the consent of the actual title holder if one possesses it long enough and meet the legal requirements. Adverse possession is one kind of involuntary transfer of ownership rights in real property. Under the doctrine of adverse possession, the true owner of a piece of real property cannot bring an action to eject someone who has actually possessed the property for a certain period of time.
Requirements for adverse possession:-
The adverse party is called the disseisor, meaning one who dispossesses the true owner of the property. The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title. Where the property is of a type ordinarily occupied only during certain times (such as a summer cottage), the disseisor may need to have only exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.
Basic requirements for adverse possession:-
Adverse possession requires at a minimum five basic conditions being met to perfect the title of the disseisor. These are: * Actual possession of the property – The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession.
In Cone v. West Virginia Pulp & Paper, the United States Court of Appeals for the Fourth Circuit held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state. The actions of the disseisor must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements. * Open and notorious use of the property – The disseisor 's use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about. * Exclusive use of the property – The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barn on the owner 's property, and the owner then uses the barn, the disseisor cannot claim exclusive use. * Hostile or adverse use of the property – The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The disseisor 's motivations may be viewed by the court in several ways: * Objective view—used without true owner 's permission and inconsistent with true owner 's rights. * Bad faith or intentional trespass view—used with the adverse possessor 's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility). * Good faith view—a few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim the land against all possible claims. * Continuous use of the property – The disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor 's time on the land, not how long true owner has been dispossessed of it. Occasional activities on the land with long gaps in activity fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor 's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.
Specific requirements for adverse possession:-
A court may require some combination of the following as elements of the basic requirements for adverse possession listed above. Which of these applies varies by jurisdiction and may be a result of interpreting common law or of statute. * Claim of title or claim of right. The Supreme Court of the United States has ruled that the mere intent to take the land as one 's own constitutes "claim of right." Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken. A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right. * Good faith (in a minority of states) or bad faith (sometimes called the "Maine Rule" although it is now abolished in Maine) * Improvement, cultivation, or enclosure * Payment of property taxes. This may be required by statute, such as in California, or just a contributing element to a court 's determination of possession. Both payments by the disseisor and by the true owner are relevant. * Color of title: A legal document that appears (incorrectly) to give the disseisor title. * Dispossession not under force of arms. Dispossession by armed invasion does not establish a claim of adverse possession against the true owner.
Effect of adverse possession:-
A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession.
Adverse possession extends only to the property actually possessed. If the original owner had a title to a greater area of property, the disseisor does not obtain all of it. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another. Many jurisdictions have accepted tax payment for the same parcel from two different parties without raising an objection or notifying either party that the other had also paid.
Adverse possession does not typically work against property owned by the public. The process of adverse possession would require a thorough analysis if private property is taken by eminent domain, after which control is given to a private corporation and then abandoned.
Adverse possession may also apply to territorial rights.
Squatter 's rights
The term "squatter 's rights" has no actual legal meaning, but is generally used to refer to a specific form of adverse possession where the disseisor holds no title to any properties adjoining the property under dispute.
If the squatter abandons the property for a period, or if the rightful owner effectively removes the squatter 's access even temporarily during the statutory period, or gives his permission, the "clock" usually stops.
For example, if the required period in a given jurisdiction is twenty years and the squatter is removed after only 15 years, the squatter loses the benefit of that 15-year possession (i.e., the clock is reset at zero). If that squatter later retakes possession of the property, that squatter must, to acquire title, remain on the property for a full 20 years after the date on which the squatter retook possession. In this example, the squatter would have held the property for a total of 35 years (the original 15 years plus the later 20 years) to acquire title.
Evidence that a squatter paid rent to the owner would defeat adverse possession for that period.
Possessory Remedies and Doctrine of Jus Tertii:-
Possessory remedies have been rejected by English law but other provisions have been made to protect possession. There are three rules in this connection. Prior possession is prima facie proof of title. He who is in possession first in time has a better title than the one who has no possession. A defendant is always at liberty to rebut that presumption by proving that he has a better title. A defendant who has violated the possession of the plaintiff is not allowed to set up the defence of jus tertii which means that he cannot plead that though neither the plaintiff nor he has the title, some third person is the true owner but the plaintiff is not. This defence is not valid under English law as prior possession is always a prima facie proof of title. Though the title of a third person is not a good defence, English law considers jus tertii as a good defence under the following circumstances: * When the defendant defends the action on behalf of and by the authority of true owner, * When he committed the act complained of by the authority of the true owner, * When he has already made satisfaction to the true owner by returning the property to him.
Physical control of a thing by a person is known as Possession. In Roman law the chief of these were: 1. That possession was Prima facie evidence of ownership. 2. Possession was the basis of certain remedies, especially the possessory interdicts. Even a wrongful possessor was protected, not only against the world at large, but also against the true owner who dispossessed him without due process of law. 3. Possession was an important condition in the acquisition of ownership in various ways. 4. In the law of pledge possession of the thing pledged constituted the creditor’s security without any presumption of ownership. If the idea of possession had remained wedded to physical control, the position would have been relatively simple. Difficulties arose when it became necessary, because of the widening of legal activity, to attribute to persons actually in control. Physical control came to be distinguished from possession under the nomenclature of ‘custody’ or ‘detention’. In Roman law it was designated sometimes by the phrase ‘in possession esse’ (as distinct from ‘Possidere’) or by coupling the word ‘Possessio’ with such words as ‘corpora liter’, ’naturalis’ and ‘naturaliter’. It is suggested that the terms ‘custody’ for English law and ‘detentio’ for Roman law would be the least confusing terminology to adopt. Three situations had thus become possible. A man could have physical control without possession and its advantages; he could have possession and its advantages without physical control; or he could have both. Possession, therefore, became a technicality of law. The separation of possession from physical control gave it a flexibility, which the administrators of the law have not been slow to utilize in fulfilling the demands of policy and convenience.
Elements of Possession:- All these definitions point to two distinct elements in the possession, one of which is physical or objective and the other mental or subjective. These two elements are termed respectively as i. The corpus possessionis or the thing possessed; and ii. Animus domini or the intention
Law demands existence of these two types of elements for constituting possession. “Neither animus nor corpus is sufficient by itself. Possession begins only with their union and lasts only until one or other of them disappears.” When these elements are not satisfied, the physical control of the thing is not possession but mere holding of a thing. The corpus possessionis:- The objective element of possession is called the corpus and consists in an exclusive physical control over the thing. Such control may be obtained, for instance, by physical apprehension of the thing. Corpus implies two things: i. The possessor’s physical relation in the res i.e., the object; and ii. The relation of the possessor to the rest of the world.
The corpus possessionis may really be described as the exclusive actual or constructive hold over a thing, coupled with the probability that hold will remain exclusive i.e., free from interference by others. Case-Law:-N.N.Muzumdar Vs State Judgment:-In this case it was held that corpus without the animus is ineffective.
Intention to possess:-
An intention to possess (sometimes called animus possidendi) is the other component of possession. All that is required is an intention to possess something for the time being. In common law countries, the intention to possess a thing is a fact. Normally, it is proved by the acts of control and surrounding circumstances.
It is possible to intend to possess something without knowing that it exists. For example, if you intend to possess a suitcase, then you intend to possess its contents, even though you do not know what it contains. It is important to distinguish between the intention sufficient to obtain possession of a thing and the intention required to commit the crime of possessing something illegally, such as banned drugs, firearms or stolen goods. The intention to exclude others from the garage and its contents does not necessarily amount to the guilty mind of intending to possess stolen goods.
When people possess places to which the public has access, it may be difficult to know whether they intend to possess everything within those places. In such circumstances, some people make it clear that they do not want possession of the things brought there by the public. For example, it is not uncommon to see a sign above the coat rack in a restaurant which disclaims responsibility for items left there.
Importance of possession:-
Possession is one of the most important concepts in property law.
In common law countries, possession is itself a property right. Absent evidence to the contrary, it provides evidence of ownership. Possession of a thing for long enough can become ownership. In the same way, the passage of time can bring to an end the owner 's right to recover possession of a thing.
There may be varying degrees of rights to possession. For example, if you leave a book that belongs to you at a cafe and the waiter picks it up, you have lost possession. When you return to recover the book, even though the waiter has possession, you have a better right to possession and the book should be returned. This example demonstrates the distinction between ownership and possession: throughout the process you have not lost ownership of the book although you have lost possession at some point.
Obtaining possession
Possession requires both control and intention. It is obtained from the first moment that both those conditions exist simultaneously. Usually, intention precedes control, as when you see a coin on the ground and reach down to pick it up. Nevertheless, it is conceivable that a person might obtain control of a thing before forming the intention to possess it.
Possession can be obtained by a one-sided act by which factual control is established. The party handing over possession must intend to do so.
Possession acquired by consent
Most property possessed is obtained with the consent of someone else who possessed it. They may have been purchased, received as gifts, leased, or borrowed. The transfer of possession of goods is called delivery. For land, it is common to speak of granting or giving possession.
A temporary transfer of possession is called a bailment. Bailment is often regarded as the separation of ownership and possession. For example, the library continues to own the book while you possess it and will have the right to possess it again when your right comes to an end. A common transaction involving bailment is a conditional sale or hire-purchase, in which the seller lets the buyer have possession of the thing before it is paid for. The buyer pays the purchase price in installments and, when it is fully paid, ownership of the thing is transferred from seller to buyer.
Possession acquired without consent
It is possible to obtain possession of a thing without anyone else 's consent. First, you might take possession of something which has never been possessed before. This can occur when you catch a wild animal; or create a new thing, such as a loaf of bread. Secondly, you might find something which someone else has lost. Thirdly, you might take something from another person without their consent. Possession acquired without consent is a property right which the law protects. It gives rise to a right of possession which is enforceable against everyone except those with a better right to possession.
Forms of transferring possession
There are various forms of transferring possession. One can physically hand over the object (e.g. handing over a newspaper bought at the newsstand) but it is not always necessary for the party to literally grab the object for possession to be considered transferred. It is enough that the object is within the realm of factual control (e.g. leaving a letter in the letterbox). Sometimes it is enough for a symbol of the object which enables factual control to be handed over (e.g. handing over the keys to a car or a house). One may also choose to terminate possession, as one throws a letter in the trash. Possession includes having the opportunity to terminate possession. If this were not the case, then police would be free to plant drugs on innocent people one second and charge them with criminal possession the next. Case-law:- Merry Vs Green Facts of the case:-The plaintiff purchased a bureau at an auction and got possession of it. In a secret drawer, there was money belonging to the vendor. As the plaintiff had no animus in regard to that money when he took possession from the vendor, he did not acquire the possession of it. The possession of the vendor was continuing in the eye of law as to the money in the secret drawer. The plaintiff subsequently found the money and appropriated it. In doing so, he was depriving the vendor unlawfully and without his consent of possession which in law was still with him. Judgment:- In this case it was held that the plaintiff had committed the offence of larceny or theft by appropriating the money.
Chapter V
Conflict between title and possession
Quiet title Vs Adverse possession:- Sometimes boundary disputes arise between neighboring landowners.
People commonly acquire title to land by purchasing it from the rightful owner or by gift or inheritance. But sometimes a third party can acquire a claim to property, through adverse possession, due to neglect of the landowner. Adverse possession claims might first come to light when a property is in the process of being sold; they must be resolved first. Quiet title actions might be employed to do that.
Adverse Possession, Defined:-
Adverse possession is "a means to acquire title to land through obvious occupancy of the land, while claiming ownership for the period of years set by the law of the state where the property exists," according to the People 's Law Dictionary. Dictionary authors Gerald and Kathleen Hill provide the example of a rancher who fences in a piece of land based on his contention it was granted to him from a prior owner. Over many years, he grazes his cattle on the parcel, with no objection from the person who holds title to the land. He could then have a claim for adverse possession.
Quiet Title Action, Defined:-
A quiet title action is a lawsuit "to establish a party 's title to real property against anyone and everyone, and thus 'quiet ' any challenges or claims to the title," according to the People 's Law Dictionary.
In actions for quiet title, notice is given to all those who might have a potential interest or claim on the property. Good title is achieved if a court is convinced title is solely the plaintiff 's.
Chapter VI Similarities and Distinctions
Both adverse possession and quiet title, generally, involve title to a parcel of land. Both also have specific legal criteria and requirements that vary from state to state. The two concepts are different parts of the same whole, however. Whereas adverse possession is one, very specific way a person can obtain ownership of land that was not his own, quiet title is the proper legal process used to resolve a range of problems that make a parcel of land 's ownership uncertain, including adverse possession claims. Similar problems could include, for example, mechanics liens, judgments and constructive trusts. All these problems make transfer of property very difficult and a piece of property less valuable, which is why clear title is so important.
This shows the importance that arises in case of the conflict with the quiet tile and adverse possession which prevails over the other so that the justice is to be achieved as a whole.
Chapter VII
Tenant and owner relationship
A plaintiff could bring a quiet title action to obtain a judgment that he is in fact the legal owner of a parcel of land that he says he acquired by adverse possession. The title owner could also bring a quiet title action to resolve the adverse possession claim. Without that judgment, anyone associated with the property in the future will be uncertain of their interest in the property and the title to that property will always be clouded, or unclear. Case-Law:- South Staffordshire Water Co. Vs Sharman Facts of the case:- The defendant was cleaning out a pool of water on their land under the orders of the plaintiff and he found two rings. He declined to deliver them to the plaintiff but failed to discover the true owner. An action was brought for the recovery of the ring. Judgment:- In this case it was held that, “where a person has possession of a house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in uno.”
Chapter VIII Conclusion
Title and possession are the two important rights related to property i.e., rights of ownership and possession. Both these concepts are two equal weighed concepts under law.
Hence, it was clear that the law was wholly beneficial for the person with the possession apart from the title holder because of the serious problems that the person with possession faces in the due course as there is more scope for the title holder to disturb or intervene in the peaceful possession of a property.
The main objective behind such decision is that no one should be allowed to take law into his own hands even though the person was the actual owner. However the person with title has been provide with the beneficial chance to approach court and thereby get legal protection to his rights against the person with the possession.
Bibliography 1. Salmond on Jurisprudence,12th edition-PJ.Fitzgerald 2. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition 3. http://en.wikipedia.org/wiki/Adverse_possession#cite_note-3 4. www.wikipedia.org/ wiki-chain-of-title 5. R.W.M.Dias- Jurisprudence 5th edition 6. V.D.Mahajan’s Jurisprudence and legal theory 5th edition 7. S.N.Dhyani-Jurisprudence and Indian legal theory Central law agency-4th edition reprint 2010 8. www. Goforthelaw./articles/ from lawstu/article 33 html 9. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002)
Relevant cases 1. Raymond Lyons & Co. Ltd. Vs. Metropolitan Police Commissioner
[1975] QB 321, [1975] 1 All ER 313 2. Akumella Panchayat Board Vs Venkata Reddy
(1945) 2 MLJ 176 3. Superintendent v. Remembrance R AIR 1980 SC 52 4. Hannah Vs Peel (1945)2 All ER 288: (1945)1 KB 509 5. Bridges Vs Hawke worth (1851) 21 LJQB 75 6. N.N.Muzumdar Vs State AIR 1951 Cal 140 7. Merry Vs Green (1841) 7 M and W 623 8. South Staffordshire Water Co. Vs Sharman (1896)2 QB 44 9. Cone v. West Virginia Pulp & Paper 330 U.S. 212 (
1947)
--------------------------------------------
[ 1 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.290 Para 3
[ 2 ]. http://en.wikipedia.org/wiki/Adverse_possession#cite_note-3
[ 3 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.290 Para 2
[ 4 ]. Salmond on Jurisprudence,12th edition-PJ.Fitzgerald Pg.No.333 Para 2
[ 5 ]. www.wikipedia.org/ wiki-quiet -title
[ 6 ]. www.wikipedia.org/ wiki-chain-of-title
[ 7 ]. www.wikipedia.org/ wiki-chain-of-title
[ 8 ]. www.wikipedia.org/ wiki-chain-of-title
[ 9 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.293 Para 2
[ 10 ]. Salmond on Jurisprudence,12th edition-PJ.Fitzgerald Pg.No.247 Para 4
[ 11 ]. [1975] QB 321, [1975] 1 All ER 313
[ 12 ]. (1945) 2 MLJ 176
[ 13 ]. AIR 1980 SC 52
[ 14 ]. The Social Sciences, p. 65
[ 15 ]. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002)
[ 16 ]. (1945)2 All ER 288: (1945)1 KB 509
[ 17 ]. (1851) 21 LJQB 75
[ 18 ]. www. Goforthelaw./articles/ from lawstu/article 33 html
[ 19 ]. 330 U.S. 212 (
1947)
[ 20 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 1
[ 21 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 2
[ 22 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 3
[ 23 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 4
[ 24 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.264 Para 4
[ 25 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.265 Para 1
[ 26 ]. AIR 1951 Cal 140
[ 27 ]. (1841) 7 M and W 623
[ 28 ]. (1896)2 QB 44
Bibliography: 9. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002) 2. Akumella Panchayat Board Vs Venkata Reddy (1945) 2 MLJ 176 4. Hannah Vs Peel (1945)2 All ER 288: (1945)1 KB 509 5. Bridges Vs Hawke worth (1851) 21 LJQB 75 7. Merry Vs Green (1841) 7 M and W 623 8. South Staffordshire Water Co. Vs Sharman (1896)2 QB 44 [ 15 ]. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002) [ 16 ] [ 17 ]. (1851) 21 LJQB 75 [ 18 ] [ 28 ]. (1896)2 QB 44
Scheme:-
In the constantly changing society, the emergence of law has led to such a situation where the title of the property is coming in conflict with the possession. This modification in law is to protect the person in possession from being subjugated by the owner of the property (i.e., title holder) by providing certain rights as well as duties imposed on both the title holder as well as the person in possession.
In my project, I will be concentrating on the changes that have taken place with times regarding the importance of title of a property and the possession of it in the jurisprudential sense. When does both these rights come in conflict to each other and which will prevail over the other in case of conflict supported with various decisions of the Court under different circumstances regarding the issue.
Chapterisation:-
1. Introduction 2. History 3. Title * Quiet title * Chain of title * Equitable versus legal title 4. Possession * Adverse possession * Effect of adverse possession * Importance of possession * Right of possession * Possession of stolen goods 5. Conflict between title and possession * Quiet title Vs Adverse possession 6. Similarities and Distinctions 7. Tenant and owner relationship 8. Conclusion
Title versus Possession
Jurisprudence project report
A.P. University of Law Visakhapatnam
Submitted by V.Divya Roll.No:200912
Acknowledgment Firstly, I would like to thank our Chancellor Prof. A.Lakshminath garu for providing me an opportunity to do a project on this topic and then I would like to thank our Vice-Chancellor Prof. R.G.B.Bhagavat Kumar garu for the valuable suggestions of him regarding how to approach law in a realistic way. I would also thank our Registrar Prof. A. Subrahmanyam garu for his extended lectures regarding how to do a project report and for guiding us in how a student should approach his studies and achieve knowledge for modulating themselves apart from the motive of earning money. Now, I would like to thank our lecturer Satya Sri for her valuable suggestions in completing my project successfully. Finally I would like to thank my parents who supported me a lot in completing my projects successfully. I would also thank my friends for their valuable suggestions. I would also thank all the others who either directly or indirectly helped me in completing my project as a successful event.
Table of contents 1. Introduction 2. History 3. Title 4. Quiet title 5. Chain of title 6. Equitable versus legal title 7. Possession 8. Adverse possession 9. Effect of adverse possession 10. Importance of possession 11. Right of possession 12. Possession of stolen goods 13. Conflict between title and possession 14. Quiet title Vs Adverse possession 15. Similarities and Distinctions 16. Tenant and owner relationship 17. Conclusion
Chapter I
Introduction
In my project, I will be focusing on few important concepts related to the project such as title, possession etc. in brief and when both these concepts come in conflict with and in case of a conflict which prevails over the other and under what circumstances such situation arises. First chapter deals with the introduction of the title and the relevancy of the topic. Second chapter deals with the history from where the concept of title and ownership has arised and how these concepts has the origin in the beginning and the gradual development of these concepts with the change in time. Third chapter deals with title. It gives a brief idea on the concept “Title”, chain of title and how is it important in case of real property and in case of chain of trademarks, copyrights and right of publicity. It further deals with quiet title, grounds for quiet title and limitations on it.
Fourth chapter deals with the possession and in particular regarding the adverse possession and the effect of adverse possession. It further deals with the importance of possession and right of possession along with the legal provisions available in India to protect the person with possession. It will also deal with the position of a person with possession of stolen goods.
Fifth chapter deals with the conflict between title and possession in particular with quiet title and adverse possession. It will be focussed on the present scenario in which the title comes in conflict with possession.
Sixth chapter deals with the similarities and distinctions of title and possession.Seventh chapter deals with the tenant and owner relationship.
Eighth chapter was the conclusion of the whole project regarding how the law has finally dealt with the problem regarding the conflict that arised in day to day life with regard to the possession and title.
Chapter II
History
In ancient Hindu law, possession and ownership were two different conceptions. The law of ‘prescription’, ‘bailment’ and ‘sale without ownership’ were based on the distinction between possession and ownership. According to Manu, the possession of the immovable properties for 20 years and of movables for 10 years gives titles by prescription. Thus, a long possession (prescription) could ripen into ownership.
At common law, where entitlement to possession of land was in dispute, the person claiming a right to possession was not allowed to allege that the land had come into his possession in the past at a time before the reign of Henry I. The law recognized a cutoff date going back into the past, before which date the law would not be interested. There was no requirement for a defendant to show any form of adverse possession. As time went on, the date was moved by statute, first to the reign of Henry II and then to the reign of Richard I. No further changes were made of this kind.
By the reign of Henry VIII the fact that there had been no changes to the cutoff date had become very inconvenient. A new approach was taken whereby the person claiming possession had to show possession of the land for a continuous period, a certain number of years (60, 50 or 30 depending on the kind of claim made) before the date of the claim. Later statutes have shortened the limitation period in most common law jurisdictions. However, in the Roman law we find a clear cut distinction between the concept of dominium and Possessio. Dominium meant an absolute right to a thing. Possessio indicated only a physical control over the thing. The Roman law influenced the English law as a result of which the concepts such as possession and title arised in the present day scenario.
Chapter III
Title
The term “title” is derived from the term “titulus” of Roman law and “Titre” of French Law. Title is the right of ownership with legal protection. According to Salmond, title is the 5th element of a legal right. He says “Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner.” He says “The title is the defacto antecedent of which the right is the dejure consequent.” According to Lord Blackburn, “The first question which arises is whether on these facts the plaintiff had any title in the ship… No title in the ship was conveyed.” Classification of titles:- Salmond divides the Vestitive facts into two types as follows: * Investitive facts or titles * Divestitive facts Vestitive facts Investitive facts or titles Divestive facts Original titles Derivative titles Alienative facts Extinctive facts
Quiet title
An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party 's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title.
This legal action is "brought to remove a cloud on the title" so that plaintiff and those in privity with him may forever be free of claims against the property. The action to quiet title resembles other forms of "preventive adjudication," such as the declaratory judgment.
Grounds for a quiet title action or complaint
It comprises a complaint that the title of a parcel of land or other real property is defective in some fashion, typically where title to the property is ambiguous.
Other typical grounds for complaint include: * adverse possession where the new possessor sues to obtain title in his or her own name; * fraudulent conveyance of a property, perhaps by a forged deed or under coercion; * Torrens title registration, an action which terminates all unrecorded claims; * treaty disputes regarding the boundaries between nations; * tax taking issues, where a municipality claims title in lieu of back taxes owed (or a subsequent purchaser of land at a tax sale files action to gain insurable title); * boundary disputes between states, municipalities, or private parties; * surveying errors * competing claims by reverters, remainders, missing heirs and lien holders (often arising in basic foreclosure actions when satisfied liens are not properly discharged from title due to clerical or recording errors between the county clerk and the satisfied lien holder)
Limitations
Unlike acquisition through a deed of sale, a quiet title action will give the party seeking such relief no cause of action against previous owners of the property, unless the plaintiff in the quiet title action acquired its interest through a warranty deed and had to bring the action to settle defects that existed when the warranty deed was delivered.
A quiet title action is also subject in many geographic jurisdictions, to a Statute of Limitations. This limitations of action is often 10 or 20 years.
Chain of title :- A chain of title is the sequence of historical transfers of title to a property. The "chain" runs from the present owner back to the original owner of the property. In situations where documentation of ownership is important, it is often necessary to reconstruct the chain of title. To facilitate this, a record of title documents may be maintained by a registry office or civil law notary.
Chain of title for real property
Real estate is one field where the chain of title has considerable significance. Various registration systems, such as the Torrens title system, have been developed to track the ownership of individual pieces of real property. In real estate transactions in the United States, insurance companies issue title insurance based upon the chain of title to the property when it is transferred. Title insurance companies sometimes maintain private title plants that track real estate titles in addition to the official records. In other cases, the chain of title is established by an abstract of title, sometimes, although not always, certified by an attorney.
Chain of title for copyrights, trademarks, and rights of publicity
The chain of title involves the series of documentation which establishes proprietary rights in a film. The chain also applies to compilations in other fields, where many people have contributed to the project, thus acquiring authorship rights, or where materials were culled from many sources. Chain of title is extremely important to film purchasers and to film distributors, as it establishes the veracity of the owner 's proprietary rights (or rights under license) in the intellectual property in a film, book or encyclopedia.
Chain of title documentation can include: * copyright clearances on music from the regional collecting society, and to a less common extent, footage of other films; * trademark clearances; * talent agreements, which should incorporate a legal release from the talent, be they actors (including crowds), directors, cinematographers, choreographers, or others, to use their works, images, likeness and other personality rights in the film; * proof of errors and omission insurance (a special form of insurance for motion picture producers which covers omissions in obtaining adequate chain of title).
EQUITABLE TITLE :– This type of title refers to the actual enjoyment and use of a property without absolute ownership. It is the interest in the property held by a buyer (vendee) under a purchase contract, contract-for-deed, or an installment-purchase agreement. The buyer (vendee) has the right to demand that legal title be transferred upon payment of the full purchase price after the final installment payment has been made. This interest is transferable by deed, assignment, subcontract, or mortgage. If the property increases in value the vendee gets the increased valuation of the property; if the property value declines the vendee in turns suffers that as well.
Equitable does not give the actual legal title to the property like it would if a buyer were using a mortgage. Equitable Title means giving the buyer an “equitable position” in the property. The legal title is conveyed only after the buyer has satisfied the contract.
LEGAL TITLE :–
Legal title is the ownership of property that is enforceable in a court of law, or one that is complete and perfect in apparent right of ownership and possession, but that unlike equitable title, carries no ‘beneficial interest’ in the property.
Ownership:-
The concept of ownership is of both legal and social interest. Idea of ownership did not evolve in the same way in relation to land and chattels. Land used to be held in feudal tenure, which was a system of land holding in return for service. This holding was known as ‘seisin’ which originally meant no more than possession and denoted the state of affairs that made enjoyment possible. If the person seised was dispossessed, he had to rely on his seisin to get back on the land, and for this the old remedy was the writ of right in which success depended on the claimant being able to establish a superior title to that of the possessor. In the non-legal sense, ownership may be defined as the right of exclusive control and disposal over a thing at will. In legal parlance, ownership can be defined as the right by which a thing belongs to an individual to the exclusion of all other persons.
Ownership denotes the relationship between a person and an object forming the subject matter of his ownership. Owner will be possessed with certain rights such as: 1. Right to possess the thing which he owns (Right in the strict sense). 2. Right to use and enjoy the thing owned. 3. Right to manage i.e., right to decide how it shall be used. 4. Right to income from such property. 5. Right to consume, destroy or alienate the thing. 6. Residuary right i.e., the rights remaining when all the lesser rights have been given away. 7. Characteristic of being indeterminate in duration. The term ownership is not strictly applicable to English law, because in an action concerning title to property the plaintiff need only prove that he has a better title than the defendant, not that he has the best of all the titles. Case-law:-Raymond Lyons & Co. Ltd. Vs. Metropolitan Police Commissioner Facts of the case:-X left a ring with jewelers for valuation and they handed it to the police. X did not return and no one claimed it. Accordingly, the jewelers alleged that they were ‘owner’ within the Police (Property) Act, 1897 Section 1(1), since they had a better title against the whole world except the true owner. Judgment: - The court rejected the claim saying that ‘owner’ in the Act had its popular meaning and that they were not ‘owner’. Definition:- According to keeton, “The right of ownership is a conception clearly easy to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of the two views are, Austin and Salmond. According to one view, ownership is a relation which subsists between a person and a thing which is the object of ownership. According to the second view, ownership is a relation between a person and a right that is vested in him.” According to Austin, “Ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature.” Full ownership is defined as “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.” Salmond says ownership denotes the relation between a person and an object forming the subject matter of his ownership. Ownership in Indian law:- Law in India, like other countries, recognizes the right to ownership in property. It is a guaranteed and protected right by the constitution. However, no one claim absolute right of ownership over a thing in India. The right of ownership is subjected to by many statutory laws and regulations, Eg:- Land reforms legislation restricting use, sale and transfer of land etc. Case-Law:- Akumella Panchayat Board Vs Venkata Reddy Facts of the case:- A public latrine was under the control of the Panchayat Board. While carrying out certain repairs, the board was obstructed by the defendant who had no title to the latrine. Judgment:-In this case it was held that the Panchayat Board were entitled to a declaration of their possession and an injunction restraining the trespasser from interfering with the work of the board in carrying out the repairs. The fact that the Panchayat had no legal title to the site on which the latrine stood, was immaterial as the defendant himself was not the owner of that site.
Chapter IV
Possession:-
In law, possession is the control which a person intentionally exercises towards a thing. In all cases, to possess something, a person must have an intention to possess it. The term ‘possession’ expresses the physical relation of control exercised by a person over a thing. Like ownership, the possession of things is commonly regulated by states under property law.
Possession is a conception which is only less important than contract. But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law. Possession is protected as a part of the law of property.
Definition:-
Salmond says- “the continuing exercise of a claim, to the exclusive use of a thing, constitutes the possession of it”.
Bentham says defining the concept of possession is like defining the geometric conception of roundness. Absolute roundness cannot be defined and so with this concept.
Maine defines possession as physical detention coupled with the intention to hold the thing detained as one’s own. Pollock has given a different view on the meaning of possession. He said: “in common speech, a man is said to possess or to be in possession of anything on which he has the apparent control, or from the use of which he has the apparent power of excluding others. The Supreme Court has opined in the case of Superintendent v. Remembrance R that “Possession is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical definition of possession uniformly applicable to all situations in context of all statutes.”
Classification of possession:-
Possession can be classified into various types based on the definitions given by various jurists:- 1. Immediate possession 2. Mediate possession 3. Representative possession 4. Concurrent possession 5. Derivative possession 6. Adverse possession 7. Duplicate possession
Why is possession protected by the law?
There are many reasons for protection of possession as follows:
Protection of possession aids the criminal law by preserving the peace. According to Savigny, the protection of possession is a branch of protection to the person. Possession is protected in order to obviate unlawful acts of violence against the person in possession. Interference with possession inevitably leads to disturbance of peace. Order is best secured by protecting a possessor and leaving the true owner to seek his remedy in a court of law. Justice Holmes writes: "Law must found itself on actual facts. It is quite enough therefore for the law that man, by an instinct which he shares with the domestic dog and of which the seal gives the most striking example, will not allow himself to be dispossessed either by force or by fraud, of which he holds, without trying of getting it back again. To obviate the violence resulting from this, possession is protected by the law.
According to Ihering, possession is ownership on the defensive. The possessor must be protected and he must not be asked to prove his title. Most of the possessors are the rightful owners and it is desirable that they should be protected. Possession is the evidence of ownership. Possession is patent to all. Possession is the nine points of law and hence protection should be given to possession.
According to Holland: "The predominant motive was probably a regard for the preservation of the peace."
The view of Windshield is that, protection to possession is given in the same way as protection is given against injuria or the violation of a legal private right. Possession is protected as a part of the law of tort. Law protects possession not only from disturbance by force but from disturbance by fraud. The protection thus afforded is part of the law of tort.
According to the philosophical school of jurists, possession is protected because a man by taking possession of an object has brought it within the sphere of his will. The freedom of the will is the essence of personality and has to be protected so long as it does not conflict with the universal will i.e., State. As possession involves an extension of personality over the object, it is protected by law. As the reputation of a person is protected against defamatory attack, his possession is protected as he has projected his personality over the object of possession.
Kant says that men are born free and equal. Freedom of will is the essence of man and it must be recognised, respected, protected and realised by all governments. Possession is the embodiment of the will of man. By taking possession of a thing, a person incorporates his will and personality in that thing. Possession is the objective realization of free will and the will of a person as expressed in possession must be protected.
Cairns writes: "Possession was originally protected to aid the Law of Crime and Tort; it came at length to be protected in order to aid the law of property."
In the early stages of the development of the law of property when proof of title to property was difficult, it was considered to be unjust to cast on a person whose possession was disturbed the burden of proving a flawless title. Therefore, the law presumed that the possessor was the owner until a superior title was shown to exist in someone else. In this way, possession came to be protected by law.
The view of Salmond is that distinct possessory remedies are not required and the punishments of criminal law and the sanctions of the Law of Tort are sufficient to prevent the evils of violent self-help. An owner who has dispossessed a trespasser need not be required to deliver possession to the trespasser and recover it back in an independent proprietary action. As for assistance rendered to the law of property, the modern law of evidence can adjust the burden of proof suitably and avoid the duplication of proprietary and possessory remedies.
While these considerations are entitled to great weight, expediency requires that possession as such must be protected. In India, a compromise has been made between proprietary and possessory remedies. If the dispossessed owner brings his suit promptly within six months, he is allowed to succeed merely on proof of possession even against the true owner. If he brings his suit beyond that period, he is non-suited if the defendant proves a superior title in himself.
What are possessory remedies and why are they recognized?
Possessory remedies are those which exist for the protection of possession even against ownership. Proprietary remedies are those which are available for the protection of ownership. In many legal systems, possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can recover it from any person whatsoever on the ground of his possession. Even the true owner, who retakes his own, must first restore possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.
There are many reasons why possessory remedies are recognized-
Possession often amounts to evidence of ownership. A finder of goods becomes its owner against the whole world except the true owner. This is on the ground that he is in possession of it. If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the right of the original owner is extinguished. Another reason for possessory remedies is to be found in the serious imperfection of early proprietary remedies. Those were cumbersome, dilatory and inefficient. Every claimant had to undergo many hardships. The position of the plaintiff was a very difficult one and no person was to be allowed to occupy the advantageous position of the defendant. It was under these circumstances that it was provided that the original state of affairs must be restored first. Possession must be given to him who had it first and then alone the claims of the various persons could be settled. Under the old legal systems, it was extremely difficult to prove one’s ownership and recover the property on the ground of title. Very often, small technicalities resulted in the defeat of one 's title to property.
Another reason for possessory remedies is that it is always more difficult to prove ownership than to prove possession. Hence it is unjust that a person who has taken possession of property by violence should not be allowed to transfer the heavy burden of proof from his own shoulders to that of his opponent. He who takes a thing by force must restore it and he is free to prove that he is the owner.
Some possessory remedies in Indian law:-
The Indian legislators have taken care of providing possessory remedies and it is reflected in various statutes. Some of the statutory provisions are being discussed below in this chapter.
Specific Relief Act, 1963
Sec.5 of the Specific Relief Act deals with action for recovery of possession of specific immovable property based on title. The essence of the section is that whoever proves a better title in a person entitled to possession. The title may be on the basis of ownership or possession. The purpose behind Sec.5 is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law.
Sec.6 of the same act provides that if any person is disposed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit, recover possession thereof.
Sections 5 & 6 give alternative remedies and are mutually exclusive. Under section 5 a person dispossessed can get possession on the basis of title whereas under section 6 a person dispossessed may recover possession merely by proving previous possession and subsequent wrongful dispossession.Sections 7 & 8 of the same act provide for methods for recovery of possession of some specific movable property.
Code of Criminal procedure, 1973 Section 145 of the Cr. P. C. lays down the procedure where a dispute concerning land or water is likely to cause breach of peace. Commenting upon the scheme of Section 146, the Supreme Court has observed that the object of the section no doubt is to prevent breach of the peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court.
Section 456 of the same code provides that when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the court may within one month after the due date of conviction, order that possession of the same be restored to that person.
Sale of Goods Act, 1930
Section 47 of the Act provides for sellers’ lien. Lien is the right to retain possession of goods until certain charges due in respect of them are paid. The unpaid seller has the right to retain the goods until he reserves their price. Section 47 provides that the unpaid seller of goods who is in possession of them is entitled to retain his possession until payment or tender of the price in following cases- * Where the goods have been sold without any stipulation as to credit. * Where the goods have been sold on credit, but the term of credit has expired * Where the buyer becomes insolvent.
Section 48 of the same act provides for part delivery. It reads-
“48. Part delivery.—Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien.”
Thus, where an unpaid seller has delivered a part of the goods, he may exercise his lien on the remainder. The party, who alleges that part delivery was intended to operate as delivery of the whole, has to prove that fact.
Indian Contract Act, 1872
Sec.168 of the ICA, 1872 provides for the right of finder of goods. It reads:
168.Right of finder of goods; may sue for specific reward offered:-
The finder of goods has no right to sue the owner for compensation for trouble and expense voluntarily incurred by him to preserve the goods and to find out the owner; but he may retain the goods against the owner until he receives such compensation; and, where the owner has offered a specific reward for the return of goods lost, the finder may sue for such reward, and may retain the goods until he receives it. Case-law: - Hannah Vs Peel Facts of the case:- The plaintiff was serving in the Royal Artillery. He was stationed in a house requisitioned by the government and he accidentally found a brooch in an upstairs room occupied by him. The brooch was handed over to the police. The police were not able to find out the rightful owner and delivered it to the defendant who was the owner of the house. The defendant sold the jewel for $66. A suit was brought for the recovery of the brooch or its jewel. The plaintiff claimed the jewel as the finder. The contention of the defendant was that he was entitled to it as the owner of the property on which it was found. The defendant was never in possession of the house and had no knowledge of the brooch until it was brought to his notice. Judgment:-In this case, it was held that the defendant had neither de facto control nor the animus of excluding others and as such had no possession. The plaintiff was entitled to the brooch or its value since his claim as finder prevailed over all but the rightful owner.
i.e., Rights of finder of lost goods prevail even against the whole world except the rightful owner. Case-Law:-Bridges Vs Hawke worth Facts of the case:- The plaintiff found a bundle of bank notes on the floor of a shop. The notes had been dropped there by a stranger by accident. The party who lost them could not be found. Judgment:-It was held that the plaintiff as the finder had property in the notes as against everyone but the true owner. The defendant had no prior possession which could prevail over the claim of the plaintiff.
Furthermore, s. 169 of the same Act reads:
169.When finder of thing commonly on sale may sell it:-
When a thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses, upon demand, to pay the lawful charges of the finder, the finder may sell it-
(1) when the thing is in danger of perishing or of losing the greater part of its value, or,
(2) when the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.
SS. 168 & 169 protect the interest of the finder in 2 ways- s. 168 allows the finder to retain the goods against the owner until he receives compensation for trouble and expense. Further, where the owner has offered a specific reward for the return of the goods lost, the finder may sue for such reward, and may retain the goods until he receive it.
S. 169 allows the finder to sell the goods in certain circumstances. Where the thing found is commonly the subject of sale and if the owner cannot be found with reasonable diligence, or if he refuses to pay the lawful charges of the finder, the finder may sell the goods in the following cases:
1. when the thing is in danger of perishing or of losing greater part of its value,
2. or when the lawful charges of the finder, in respect of te thing found, amount to 2/3 of its value.
For it has been held that, if a stick of timber comes ashore on a man 's land, he thereby acquires a "right of possession" as against an actual finder who enters for the purpose of removing it.
Adverse Possession
Adverse possession is a way of acquiring title to real property by physically occupying it for a long period of time. Through this, one may acquire property without the consent of the actual title holder if one possesses it long enough and meet the legal requirements. Adverse possession is one kind of involuntary transfer of ownership rights in real property. Under the doctrine of adverse possession, the true owner of a piece of real property cannot bring an action to eject someone who has actually possessed the property for a certain period of time.
Requirements for adverse possession:-
The adverse party is called the disseisor, meaning one who dispossesses the true owner of the property. The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title. Where the property is of a type ordinarily occupied only during certain times (such as a summer cottage), the disseisor may need to have only exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.
Basic requirements for adverse possession:-
Adverse possession requires at a minimum five basic conditions being met to perfect the title of the disseisor. These are: * Actual possession of the property – The disseisor must physically use the land as a property owner would, in accordance with the type of property, location, and uses. Merely walking or hunting on land does not establish actual possession.
In Cone v. West Virginia Pulp & Paper, the United States Court of Appeals for the Fourth Circuit held that Cone failed to establish actual possession by occasionally visiting the land and hunting on it, because his actions did not change the land from a wild and natural state. The actions of the disseisor must change the state of the land, as by clearing, mowing, planting, harvesting fruit of the land, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock and constructing buildings or other improvements. * Open and notorious use of the property – The disseisor 's use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about. * Exclusive use of the property – The disseisor holds the land to the exclusion of the true owner. If, for example, the disseisor builds a barn on the owner 's property, and the owner then uses the barn, the disseisor cannot claim exclusive use. * Hostile or adverse use of the property – The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile. The disseisor 's motivations may be viewed by the court in several ways: * Objective view—used without true owner 's permission and inconsistent with true owner 's rights. * Bad faith or intentional trespass view—used with the adverse possessor 's subjective intent and state of mind (mistaken possession in some jurisdictions does not constitute hostility). * Good faith view—a few courts have required that the party mistakenly believed that it is his land. All views require that the disseisor openly claim the land against all possible claims. * Continuous use of the property – The disseisor must, for statute of limitations purposes, hold that property continuously for the entire limitations period, and use it as a true owner would for that time. This element focuses on adverse possessor 's time on the land, not how long true owner has been dispossessed of it. Occasional activities on the land with long gaps in activity fail the test of continuous possession. Courts have ruled that merely cutting timber at intervals, when not accompanied by other actions that demonstrate actual and continuous possession, fails to demonstrate continuous possession. If the true owner ejects the disseisor from the land, verbally or through legal action, and after some time the disseisor returns and dispossesses him again, then the statute of limitation starts over from the time of the disseisor 's return. He cannot count the time between his ejection by the true property owner and the date on which he returned.
Specific requirements for adverse possession:-
A court may require some combination of the following as elements of the basic requirements for adverse possession listed above. Which of these applies varies by jurisdiction and may be a result of interpreting common law or of statute. * Claim of title or claim of right. The Supreme Court of the United States has ruled that the mere intent to take the land as one 's own constitutes "claim of right." Other cases have determined that a claim of right exists if the person believes he has rightful claim to the property, even if that belief is mistaken. A negative example would be a timber thief who sneaks onto a property, cuts timber not visible from the road, and hauls the logs away at night. His actions, though they demonstrate actual possession, also demonstrate knowledge of guilt, as opposed to claim of right. * Good faith (in a minority of states) or bad faith (sometimes called the "Maine Rule" although it is now abolished in Maine) * Improvement, cultivation, or enclosure * Payment of property taxes. This may be required by statute, such as in California, or just a contributing element to a court 's determination of possession. Both payments by the disseisor and by the true owner are relevant. * Color of title: A legal document that appears (incorrectly) to give the disseisor title. * Dispossession not under force of arms. Dispossession by armed invasion does not establish a claim of adverse possession against the true owner.
Effect of adverse possession:-
A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in title by adverse possession.
Adverse possession extends only to the property actually possessed. If the original owner had a title to a greater area of property, the disseisor does not obtain all of it. The effects of having a stranger to the title paying taxes on property may vary from one jurisdiction to another. Many jurisdictions have accepted tax payment for the same parcel from two different parties without raising an objection or notifying either party that the other had also paid.
Adverse possession does not typically work against property owned by the public. The process of adverse possession would require a thorough analysis if private property is taken by eminent domain, after which control is given to a private corporation and then abandoned.
Adverse possession may also apply to territorial rights.
Squatter 's rights
The term "squatter 's rights" has no actual legal meaning, but is generally used to refer to a specific form of adverse possession where the disseisor holds no title to any properties adjoining the property under dispute.
If the squatter abandons the property for a period, or if the rightful owner effectively removes the squatter 's access even temporarily during the statutory period, or gives his permission, the "clock" usually stops.
For example, if the required period in a given jurisdiction is twenty years and the squatter is removed after only 15 years, the squatter loses the benefit of that 15-year possession (i.e., the clock is reset at zero). If that squatter later retakes possession of the property, that squatter must, to acquire title, remain on the property for a full 20 years after the date on which the squatter retook possession. In this example, the squatter would have held the property for a total of 35 years (the original 15 years plus the later 20 years) to acquire title.
Evidence that a squatter paid rent to the owner would defeat adverse possession for that period.
Possessory Remedies and Doctrine of Jus Tertii:-
Possessory remedies have been rejected by English law but other provisions have been made to protect possession. There are three rules in this connection. Prior possession is prima facie proof of title. He who is in possession first in time has a better title than the one who has no possession. A defendant is always at liberty to rebut that presumption by proving that he has a better title. A defendant who has violated the possession of the plaintiff is not allowed to set up the defence of jus tertii which means that he cannot plead that though neither the plaintiff nor he has the title, some third person is the true owner but the plaintiff is not. This defence is not valid under English law as prior possession is always a prima facie proof of title. Though the title of a third person is not a good defence, English law considers jus tertii as a good defence under the following circumstances: * When the defendant defends the action on behalf of and by the authority of true owner, * When he committed the act complained of by the authority of the true owner, * When he has already made satisfaction to the true owner by returning the property to him.
Physical control of a thing by a person is known as Possession. In Roman law the chief of these were: 1. That possession was Prima facie evidence of ownership. 2. Possession was the basis of certain remedies, especially the possessory interdicts. Even a wrongful possessor was protected, not only against the world at large, but also against the true owner who dispossessed him without due process of law. 3. Possession was an important condition in the acquisition of ownership in various ways. 4. In the law of pledge possession of the thing pledged constituted the creditor’s security without any presumption of ownership. If the idea of possession had remained wedded to physical control, the position would have been relatively simple. Difficulties arose when it became necessary, because of the widening of legal activity, to attribute to persons actually in control. Physical control came to be distinguished from possession under the nomenclature of ‘custody’ or ‘detention’. In Roman law it was designated sometimes by the phrase ‘in possession esse’ (as distinct from ‘Possidere’) or by coupling the word ‘Possessio’ with such words as ‘corpora liter’, ’naturalis’ and ‘naturaliter’. It is suggested that the terms ‘custody’ for English law and ‘detentio’ for Roman law would be the least confusing terminology to adopt. Three situations had thus become possible. A man could have physical control without possession and its advantages; he could have possession and its advantages without physical control; or he could have both. Possession, therefore, became a technicality of law. The separation of possession from physical control gave it a flexibility, which the administrators of the law have not been slow to utilize in fulfilling the demands of policy and convenience.
Elements of Possession:- All these definitions point to two distinct elements in the possession, one of which is physical or objective and the other mental or subjective. These two elements are termed respectively as i. The corpus possessionis or the thing possessed; and ii. Animus domini or the intention
Law demands existence of these two types of elements for constituting possession. “Neither animus nor corpus is sufficient by itself. Possession begins only with their union and lasts only until one or other of them disappears.” When these elements are not satisfied, the physical control of the thing is not possession but mere holding of a thing. The corpus possessionis:- The objective element of possession is called the corpus and consists in an exclusive physical control over the thing. Such control may be obtained, for instance, by physical apprehension of the thing. Corpus implies two things: i. The possessor’s physical relation in the res i.e., the object; and ii. The relation of the possessor to the rest of the world.
The corpus possessionis may really be described as the exclusive actual or constructive hold over a thing, coupled with the probability that hold will remain exclusive i.e., free from interference by others. Case-Law:-N.N.Muzumdar Vs State Judgment:-In this case it was held that corpus without the animus is ineffective.
Intention to possess:-
An intention to possess (sometimes called animus possidendi) is the other component of possession. All that is required is an intention to possess something for the time being. In common law countries, the intention to possess a thing is a fact. Normally, it is proved by the acts of control and surrounding circumstances.
It is possible to intend to possess something without knowing that it exists. For example, if you intend to possess a suitcase, then you intend to possess its contents, even though you do not know what it contains. It is important to distinguish between the intention sufficient to obtain possession of a thing and the intention required to commit the crime of possessing something illegally, such as banned drugs, firearms or stolen goods. The intention to exclude others from the garage and its contents does not necessarily amount to the guilty mind of intending to possess stolen goods.
When people possess places to which the public has access, it may be difficult to know whether they intend to possess everything within those places. In such circumstances, some people make it clear that they do not want possession of the things brought there by the public. For example, it is not uncommon to see a sign above the coat rack in a restaurant which disclaims responsibility for items left there.
Importance of possession:-
Possession is one of the most important concepts in property law.
In common law countries, possession is itself a property right. Absent evidence to the contrary, it provides evidence of ownership. Possession of a thing for long enough can become ownership. In the same way, the passage of time can bring to an end the owner 's right to recover possession of a thing.
There may be varying degrees of rights to possession. For example, if you leave a book that belongs to you at a cafe and the waiter picks it up, you have lost possession. When you return to recover the book, even though the waiter has possession, you have a better right to possession and the book should be returned. This example demonstrates the distinction between ownership and possession: throughout the process you have not lost ownership of the book although you have lost possession at some point.
Obtaining possession
Possession requires both control and intention. It is obtained from the first moment that both those conditions exist simultaneously. Usually, intention precedes control, as when you see a coin on the ground and reach down to pick it up. Nevertheless, it is conceivable that a person might obtain control of a thing before forming the intention to possess it.
Possession can be obtained by a one-sided act by which factual control is established. The party handing over possession must intend to do so.
Possession acquired by consent
Most property possessed is obtained with the consent of someone else who possessed it. They may have been purchased, received as gifts, leased, or borrowed. The transfer of possession of goods is called delivery. For land, it is common to speak of granting or giving possession.
A temporary transfer of possession is called a bailment. Bailment is often regarded as the separation of ownership and possession. For example, the library continues to own the book while you possess it and will have the right to possess it again when your right comes to an end. A common transaction involving bailment is a conditional sale or hire-purchase, in which the seller lets the buyer have possession of the thing before it is paid for. The buyer pays the purchase price in installments and, when it is fully paid, ownership of the thing is transferred from seller to buyer.
Possession acquired without consent
It is possible to obtain possession of a thing without anyone else 's consent. First, you might take possession of something which has never been possessed before. This can occur when you catch a wild animal; or create a new thing, such as a loaf of bread. Secondly, you might find something which someone else has lost. Thirdly, you might take something from another person without their consent. Possession acquired without consent is a property right which the law protects. It gives rise to a right of possession which is enforceable against everyone except those with a better right to possession.
Forms of transferring possession
There are various forms of transferring possession. One can physically hand over the object (e.g. handing over a newspaper bought at the newsstand) but it is not always necessary for the party to literally grab the object for possession to be considered transferred. It is enough that the object is within the realm of factual control (e.g. leaving a letter in the letterbox). Sometimes it is enough for a symbol of the object which enables factual control to be handed over (e.g. handing over the keys to a car or a house). One may also choose to terminate possession, as one throws a letter in the trash. Possession includes having the opportunity to terminate possession. If this were not the case, then police would be free to plant drugs on innocent people one second and charge them with criminal possession the next. Case-law:- Merry Vs Green Facts of the case:-The plaintiff purchased a bureau at an auction and got possession of it. In a secret drawer, there was money belonging to the vendor. As the plaintiff had no animus in regard to that money when he took possession from the vendor, he did not acquire the possession of it. The possession of the vendor was continuing in the eye of law as to the money in the secret drawer. The plaintiff subsequently found the money and appropriated it. In doing so, he was depriving the vendor unlawfully and without his consent of possession which in law was still with him. Judgment:- In this case it was held that the plaintiff had committed the offence of larceny or theft by appropriating the money.
Chapter V
Conflict between title and possession
Quiet title Vs Adverse possession:- Sometimes boundary disputes arise between neighboring landowners.
People commonly acquire title to land by purchasing it from the rightful owner or by gift or inheritance. But sometimes a third party can acquire a claim to property, through adverse possession, due to neglect of the landowner. Adverse possession claims might first come to light when a property is in the process of being sold; they must be resolved first. Quiet title actions might be employed to do that.
Adverse Possession, Defined:-
Adverse possession is "a means to acquire title to land through obvious occupancy of the land, while claiming ownership for the period of years set by the law of the state where the property exists," according to the People 's Law Dictionary. Dictionary authors Gerald and Kathleen Hill provide the example of a rancher who fences in a piece of land based on his contention it was granted to him from a prior owner. Over many years, he grazes his cattle on the parcel, with no objection from the person who holds title to the land. He could then have a claim for adverse possession.
Quiet Title Action, Defined:-
A quiet title action is a lawsuit "to establish a party 's title to real property against anyone and everyone, and thus 'quiet ' any challenges or claims to the title," according to the People 's Law Dictionary.
In actions for quiet title, notice is given to all those who might have a potential interest or claim on the property. Good title is achieved if a court is convinced title is solely the plaintiff 's.
Chapter VI Similarities and Distinctions
Both adverse possession and quiet title, generally, involve title to a parcel of land. Both also have specific legal criteria and requirements that vary from state to state. The two concepts are different parts of the same whole, however. Whereas adverse possession is one, very specific way a person can obtain ownership of land that was not his own, quiet title is the proper legal process used to resolve a range of problems that make a parcel of land 's ownership uncertain, including adverse possession claims. Similar problems could include, for example, mechanics liens, judgments and constructive trusts. All these problems make transfer of property very difficult and a piece of property less valuable, which is why clear title is so important.
This shows the importance that arises in case of the conflict with the quiet tile and adverse possession which prevails over the other so that the justice is to be achieved as a whole.
Chapter VII
Tenant and owner relationship
A plaintiff could bring a quiet title action to obtain a judgment that he is in fact the legal owner of a parcel of land that he says he acquired by adverse possession. The title owner could also bring a quiet title action to resolve the adverse possession claim. Without that judgment, anyone associated with the property in the future will be uncertain of their interest in the property and the title to that property will always be clouded, or unclear. Case-Law:- South Staffordshire Water Co. Vs Sharman Facts of the case:- The defendant was cleaning out a pool of water on their land under the orders of the plaintiff and he found two rings. He declined to deliver them to the plaintiff but failed to discover the true owner. An action was brought for the recovery of the ring. Judgment:- In this case it was held that, “where a person has possession of a house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in uno.”
Chapter VIII Conclusion
Title and possession are the two important rights related to property i.e., rights of ownership and possession. Both these concepts are two equal weighed concepts under law.
Hence, it was clear that the law was wholly beneficial for the person with the possession apart from the title holder because of the serious problems that the person with possession faces in the due course as there is more scope for the title holder to disturb or intervene in the peaceful possession of a property.
The main objective behind such decision is that no one should be allowed to take law into his own hands even though the person was the actual owner. However the person with title has been provide with the beneficial chance to approach court and thereby get legal protection to his rights against the person with the possession.
Bibliography 1. Salmond on Jurisprudence,12th edition-PJ.Fitzgerald 2. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition 3. http://en.wikipedia.org/wiki/Adverse_possession#cite_note-3 4. www.wikipedia.org/ wiki-chain-of-title 5. R.W.M.Dias- Jurisprudence 5th edition 6. V.D.Mahajan’s Jurisprudence and legal theory 5th edition 7. S.N.Dhyani-Jurisprudence and Indian legal theory Central law agency-4th edition reprint 2010 8. www. Goforthelaw./articles/ from lawstu/article 33 html 9. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002)
Relevant cases 1. Raymond Lyons & Co. Ltd. Vs. Metropolitan Police Commissioner
[1975] QB 321, [1975] 1 All ER 313 2. Akumella Panchayat Board Vs Venkata Reddy
(1945) 2 MLJ 176 3. Superintendent v. Remembrance R AIR 1980 SC 52 4. Hannah Vs Peel (1945)2 All ER 288: (1945)1 KB 509 5. Bridges Vs Hawke worth (1851) 21 LJQB 75 6. N.N.Muzumdar Vs State AIR 1951 Cal 140 7. Merry Vs Green (1841) 7 M and W 623 8. South Staffordshire Water Co. Vs Sharman (1896)2 QB 44 9. Cone v. West Virginia Pulp & Paper 330 U.S. 212 (
1947)
--------------------------------------------
[ 1 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.290 Para 3
[ 2 ]. http://en.wikipedia.org/wiki/Adverse_possession#cite_note-3
[ 3 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.290 Para 2
[ 4 ]. Salmond on Jurisprudence,12th edition-PJ.Fitzgerald Pg.No.333 Para 2
[ 5 ]. www.wikipedia.org/ wiki-quiet -title
[ 6 ]. www.wikipedia.org/ wiki-chain-of-title
[ 7 ]. www.wikipedia.org/ wiki-chain-of-title
[ 8 ]. www.wikipedia.org/ wiki-chain-of-title
[ 9 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.293 Para 2
[ 10 ]. Salmond on Jurisprudence,12th edition-PJ.Fitzgerald Pg.No.247 Para 4
[ 11 ]. [1975] QB 321, [1975] 1 All ER 313
[ 12 ]. (1945) 2 MLJ 176
[ 13 ]. AIR 1980 SC 52
[ 14 ]. The Social Sciences, p. 65
[ 15 ]. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002)
[ 16 ]. (1945)2 All ER 288: (1945)1 KB 509
[ 17 ]. (1851) 21 LJQB 75
[ 18 ]. www. Goforthelaw./articles/ from lawstu/article 33 html
[ 19 ]. 330 U.S. 212 (
1947)
[ 20 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 1
[ 21 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 2
[ 22 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 3
[ 23 ]. R.W.M.Dias- Jurisprudence 5th edition Pg.No.272 Para 4
[ 24 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.264 Para 4
[ 25 ]. Dr.S.R.Myneni- Jurisprudence (Legal theory) 2nd edition Pg.No.265 Para 1
[ 26 ]. AIR 1951 Cal 140
[ 27 ]. (1841) 7 M and W 623
[ 28 ]. (1896)2 QB 44
Bibliography: 9. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002) 2. Akumella Panchayat Board Vs Venkata Reddy (1945) 2 MLJ 176 4. Hannah Vs Peel (1945)2 All ER 288: (1945)1 KB 509 5. Bridges Vs Hawke worth (1851) 21 LJQB 75 7. Merry Vs Green (1841) 7 M and W 623 8. South Staffordshire Water Co. Vs Sharman (1896)2 QB 44 [ 15 ]. PJ Fitzerland, Salmond on Jurisprudence, (New Delhi: Universal law publications, 2002) [ 16 ] [ 17 ]. (1851) 21 LJQB 75 [ 18 ] [ 28 ]. (1896)2 QB 44
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