LAWS 2204
SEMESTER 1 2000
QUESTION 1
MARK: 81
(a) Col’s Claim to no 9
The house is real property, and so meant for Gina. Col (C) appears to be the legal owner of no.9. in a priority
contest between C and anyone else, C would have better title. However, this is changed by the Limitations Act
1969. if there has been adverse possession of the land for 12 years, C’s title will be barred. The result is that
possession will become the best right. Gina (G) is arguably in possession of the land (see later). If G can
establish adverse possession for 12 continuous years, she will be able to bar C’s title, and thereby claim the best
title in the land.
Adverse Possession
Adverse possession has 2 elements that need to be proven – factual possession, intention to possess (also called
animus possidendi). Both of these must last for a continuous period of 12 years.
1. Factual possession
G arguably only came into possession of the land this year. However, before that Fran (F) was arguably in
possession of the land. If the land is continuously being adversely possessed, it does no matter if this
possession is by different people. The land can be passed between people during the 12 years. This means that
12 years of factual possession must be established between G and F.
Factual possession requires the adverse possessor to perform acts of possession: Moran. There are 2 possible
times this may have started
(i) End of 1986 – F emptied the mail and kept the garden. This is insufficient [TEST?] although keeping a
garden was enough in Moran, the land was a vacant lot. What is sufficient depends on the type of land. This is
a house – F’s acts appear not to be acts of possession.
(ii) Christmas 1988 – F changed the locks on the house and allowed homeless people in. it is assured F kept
the keys to the new locks although it is not stated. If F just left the doors open for anyone to use, this may be
insufficient for an act of possession. Possession must be single and exclusive. However, if F controlled who
went into the house, this could be characterized as exclusive possession. F’s position is comparable to that of a
landlord. It is exclusive in that she controls the house. The holes people all lack this element of control.
There could not be acts of possession among the homeless if F failed to show possession, as the homeless
people do not possess exclusively.
2. Intention to Possess
There is clearly no intention to possess in 1986. An intention to possess is an intention to exclude the world at
large including the proper titleholder: Moran. Changing the locks in 1988 potentially shows such an intention.
Once again, if F left the doors open for everyone, the intention is probably lacking. Precisely when, or if, F
formed the intention is unclear. There is no evidence as to what she would have done had the paper titleholder
returned. However, in my opinion, changing the locks on a suburban house evidences an intent to possess if
she then used those locks to control who could enter the premises. [Look at her purpose]
The 12 Years
If adverse possession began late 1988, 12 years have not yet passed. Only at the end of this year will G have
possession. The fact that F never had legal title does not prevent her leaving it to G in her will. F had
possession, which was good against all the world except the person with paper title. She has left his possession
to G. The question is whether those 12 years have been broken. A letter asking G to leave is insufficient to
stop the clock for adverse possession: Moran. C must initiate court action, to retake the land, such as changing
the locks. A physical action is unlikely if C is in Canada. However, court action or giving of consent before the
end of the year are possible.
Conclusion
If G can show 12 years adverse possession, she has claim to the land over C. Whether there is any adverse
possession at all is questionable. In my opinion, there is probably adverse possession. Even if this is the case,
C can still reclaim the land by court action, physical actions to retake the land or giving his consent. This will
stop the clock before G has the required 12 years.
[Well done!]
(b) The Sculptures
Three parties potentially have a right to the sculptures – G, HH or Lea (L). G has a right to all real property.
If the sculptures are real property, they are hers. L no longer has any interest. If the sculptures are personal
property, they are left to HH in the will. However, L may still have a cross claim.
Are the sculptures real property?
Personal property becomes real property if it becomes a part of the land. In such a case, it is called a fixture.
When a chattel becomes a fixture, it belongs to the owner of the land. The previous owner of the chattel had
no claim.
The test as to whether something is a fixture comes form Holland v Hodgson. Whether a chattel is a fixture is
determined by intention. The intention is evidence by the degree of annexation + the object or purpose of
annexations.
(1) Degree of annexation. This limb of the test creates a presumption as to whether there is a chattel or a
fixture. If the chattel rests of the reality on its own weight, it is presumed to remain a chattel. The ones to
rebut this is on the party claiming it is a fixture. In this case, the stone sculpture is presumed to be a chattel.
The onus to rebut this is on G.
If the chattel is attached to the land in any way, it is presumed to become a fixture. The onus to rebut this
presumption is on the party claiming it is a chattel. In this case, the glass and steel sculpture with vases
embedded in the ground are presumed to be fixtures. The onus is on L and HH to rebut this.
(2) Object or purpose of annexation. This rebuts the presumption.
(i) The stone sculpture. The sculpture is large, but it is moveable. It is a decoration, suggesting it is not a
fixture: Leigh v Taylor. It does not seem to form an integral part of the gardens’ landscape architecture. This
supports the presumption that the stone sculptor is not a fixture. It remains a chattel, so G has no claim to it.
(ii) The glass and steel sculptures. Like the stone sculptures, these sculptures are decorations and not part of
the landscape architecture, suggesting they are not fixtures. However, ease of removal is evidence of purpose:
Aust Provincial Assurance Co. The glass sculptures or producing large holes in the lawn when the gases are taken
away. If large holes in the lawn are not easy to fix, this suggests a fixture. If the sculptures are likely to break,
this would also suggest a fixture. More evidence is needed as to both of these points. If the sculptures would
break, in my opinion, it is sufficient to show they are fixtures and so belong to G.
[NB L’s standing]
Sculptures as Personal Property
Any sculptures that are not fixtures are personal property. F left her personal property to HH, but are the
sculptures F’s personal property, or do they still belong to L? For the sculpture to belong to HH, 2 things must
be established – firstly, that L abandoned possession, and secondly that F took possession.
1. Abandonment of possession
It is not clear if this is recognised at law: Moorheouse. If it is not, L has the better right to the sculptures as the
prior possessor. If it is, two elements must be established:
(i) Relinquishing of physical control. This is satisfied as L moved out and left the sculptures
(ii) Intent to divest yourself of possession. L demonstrated such an intent by saying she never wanted to look
at them again. [?? Unequivocal]
2. Taking Possession
If L abandoned the sculptures, F must then have took possession for her to be able to leave the property in her
will. This has 2 requirements:
(i) Physical control – F looked after the sculptures. Possible acts of control short of selling are few, and so
cleaning and trimming the grass around them is probably sufficient.
(ii) Intention to possess – F loved the sculptures and looked after them. This suggests intention to possess.
Note they were on the adversely possessed land and issues as to whether she intended to possess the land may
also be relevant to whether see intended to possess the sculptures.
Conclusion
If abandonment is recognizes by the law, the sculptures belong to HH. If not, they belong to L
[Could do more with the facts on both issues – fixtures, abandonment]
(c) Jewellery
The jewellery had been found under the house. There are three potential owners – the original owner, the
finder, and the landowner. The original owner will have better title than anyone else to the jewellery as they
were in prior possession. If the original owner is not found there will be a priority contest between finder +
landowner. The landowner will be assumed to be F for the purposes of this question. If it was the personal
property is then passed to HH. This is not a fixture as it merely rested on the land.
Effect of Independent Contractor
If an employee finds goods in the course of their work, those goods will belong to the employer: Willey v Synan.
An independent contractor is probably insufficient – compare to vicarious liability law in torts. If not
responsible for contractors actions cannot claim goods.
Found on Land
The court in Flack held money found in house belonged to owner due to presumption of a high degree of
control. Would not apply here for 2 reasons.
(i) Under, not in house.
(ii) F had less control over the house – the evidence shows people wandered in and out of the property
frequently. Combined, these 2 factors mean that F lacked the manifest intent to control required by Flack for
the landowner to take the goods over the finder.
Conclusion
If the real owner is not found, the goods belong to the contractor.
[Issues recognised. Resolutions not altogether convincing]