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Possession of Land: Conceptual Creep As an Aspect of Modern Perspectives of the Relative Enjoyment of Land

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Possession of Land: Conceptual Creep As an Aspect of Modern Perspectives of the Relative Enjoyment of Land Possession of Land: Conceptual Creep as an Aspect of Modern Perspectives of the Relative Enjoyment of Land Chris Boge LLB, LLM(Hons) Student no. n0759368 Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Queensland University of Technology Faculty of Law 2019 Abstract In Queensland v Congoo (2015) 256 CLR 239, [11], French CJ and Keane J remarked that possession is a term for which "English law has never worked out a completely logical and exhaustive definition". However, in Hunter v Canary Wharf Ltd [1997] 2 WLR 684, 706, Lord Hoffmann had said that "[e]xclusive possession de jure or de facto, now or in the future, is the bedrock of … land law". For such a seemingly important term, it may strike as odd that it has, in fact, proved impossible to define. Despite, in one of its applications, representing an appearance of power over land, possession is an abstract legal concept and is an element in the law's response to recognising and protecting the enjoyment of land. It is, then, like ownership, part of an objective or argument of the law. And, in working out that role or function, it is better to try to understand possession's applications. In its orthodox or technical sense, possession is a relationship with an estate in land and is property. Like ownership, it represents priority to and exclusivity of land, as represented by an estate. Unfortunately, and perhaps because of the fragmentation of property into a bundle of rights, possession has apparently come to represent varying rights of enjoyment in respect of land. Such applications of the concept – which have taken place in various contexts, but particularly in respect of statutory interests in land – may have had the effect of causing possession to conceptually creep in its representation of particular characteristics. This research identifies circumstances in which possession of land, according to its orthodox conceptualisation in law, has been in recent times, or may be, the subject of a reshaping (including modification) in law by adjudicative methods. In so doing, the research shows that, while there are several cohering links as between various applications of the possession concept outside its application in an orthodox sense, there is an absence of a logical organisation of those links which can assist in our confidently identifying the stable characteristics which the possession concept today represents in law. Page | 1 Contents 1. Chapter 1: Introduction ......................................................................................... 8 1.1 Introduction .................................................................................................................... 8 1.2 Objective of research and thesis .................................................................................... 9 1.3 Methodology ................................................................................................................... 9 1.4 Introductory ideas to possession of land ..................................................................... 14 1.5 Transforming ownership .............................................................................................. 33 2. Chapter 2: Literature review ................................................................................ 38 2.1 What is possession? The identity of possession and its role in real property law .................................................................................................................. 38 2.2 The meaning of possession .......................................................................................... 40 2.3 Possession and its historical links with other concepts ............................................. 42 2.4 Factual possession and the possessory title: their definition and significance ................................................................................................................... 48 2.5 The policy of possession ................................................................................................ 51 2.6 A new or broader possession and the idea of property .............................................. 59 2.7 Possession and theories of property ............................................................................ 60 3. Chapter 3: Possession of land as a functional abstract concept in law .................. 71 3.1 Purpose of this chapter ................................................................................................. 71 3.2 Possession in the imagination of law: idea-building as an aspect of abstraction ..................................................................................................................... 71 3.3 Possession and ownership as conceptual elements within the law's response to an enjoyment of land argument................................................................76 3.4 Concepts in law and as 'propertising' things ............................................................... 83 3.5 Explaining priority, exclusivity, and thinghood: the compound and representative characteristics of the orthodox I-Thing legal enjoyment of land ........................................................................................................................... 101 3.6 Possession's and ownership's essential characteristics as representations in themselves ................................................................................... 106 3.7 Land as a thing and the abstract thinghood source of ownership in possession ................................................................................................................... 109 3.8 How ownership functions as a legal construct .......................................................... 122 3.9 Explaining possession of an estate as a legal concept in an orthodox or technical sense ............................................................................................................. 132 3.10 Ownership in possession: possession being of ownership and an owner's acting as, and like, an owner ........................................................................ 140 3.11 The lease: an abstract ownership in itself .................................................................. 152 3.12 Seisin and possession .................................................................................................. 159 3.13 Relative relationships with land and with third parties as aspects of conceptualisation: relative 'rights' of possession .......................................................168 3.14 Possession and occupation ......................................................................................... 170 3.15 Conclusions .................................................................................................................. 172 4. Chapter 4: The framework for possession's developments and applications: an analysis of its susceptibility to reshaping ................................. 174 4.1 Purpose of chapter ....................................................................................................... 174 4.2 Reshaping the content of possession beyond title: its susceptibility to modification ................................................................................................................. 174 4.3 Possession's modernism within ownership as a process of fragmentation and as perception of changing needs and relationships ................... 182 4.4 Conclusions .................................................................................................................. 213 5. Chapter 5: Adjudicative reshaping of the lawfulness of enjoyment and the weighing of relative interests and values ..................................................... 215 5.1 Purpose of chapter ....................................................................................................... 215 5.2 Possession's and ownership's abstractions: summarising diffuse material under a manageable heading? ..................................................................... 215 5.3 An opening for reworking possession? ..................................................................... 224 Page | 2 5.4 Adjudicative 'lawfulness' as an exercise in inner-systemic abstract justification: the horizontal extension of ownership in possession as conceptualised ............................................................................................................ 226 5.5 Conclusion .................................................................................................................. 240 6. Chapter 6: Possession as exclusion and the relativity of rights ......................... 243 6.1 Purpose of chapter ...................................................................................................... 243 6.2 Trespass, ownership, possession, and excluding others .......................................... 243 6.3 The action in trespass: of possession or the right to exclude? ................................. 244 6.4 A right of possession against the whole world and a right of possession not against the whole world?: a problem of 'relativity' ............................................. 251 6.5 Trespass and relief as justice: the relative superior claim of 'right' regardless of possession, access to justice, and 'unorthodox' possession ............... 256 6.6 Conclusion .................................................................................................................
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