On 22 March 2021, the Oxford Law Faculty held a virtual event to mark the publication of my book, Possession, Relative Title, and Ownership in English Law (OUP 2021). Before an audience of more than 90, three commentators each discussed the book’s arguments in relation to a specific context: Professor Birke Häcker (Oxford) considered personal property; Professor Henry Smith (Harvard) discussed property theory; and Upper Tribunal Judge Elizabeth Cooke (Visiting Professor, Oxford) spoke about land law. In this post, I outline the book’s subject matter and then reflect on some of the issues raised at the launch.

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The book focuses on two basic features of English property law: possession is a source of ‘title’ and ‘titles’ are relative. These features are generally regarded as foundational, and many see them as hallmarks of common law systems. Yet, there are competing conceptions of the nature of the ‘title’ acquired through possession. This debate has important practical and theoretical ramifications. For example, on one view, the ‘title’ acquired by a possessor, C, is fragile—it will generally disappear if and when C ceases to be in possession. Consequently, if D interferes with the thing after C has lost possession, D does not thereby commit a tort against C. The disagreement over the nature of C’s title also has significant implications for the proper limits of relativity of title and, in particular, the circumstances in which D should be able to avoid liability by relying upon the title of a third party (jus tertii).

So one key question is as to the nature of the ‘title’ that is acquired through possession. The book distils and evaluates three approaches:

a)The Possessory Right View: the rights acquired by C, a possessor, are calibrated to protect C’s possession as such, but do not go beyond this.

b)The Strong Proprietary Interest View: the fact of possession gives rise to an alienable proprietary interest that is not dependent on continued possession.

c)The Presumed Property View: the fact of possession gives rise to a presumption that C has a proprietary interest.

In the central chapters of the book, the Possessory Right View is rejected: it is argued that, under English law, C does not merely acquire a right that protects her possession against unauthorised interference, but rather an interest, comprising a right to exclude the world at large, that is neither time-limited nor dependent on retaining possession (specifically, a fee simple estate in cases involving land and a general property interest in cases involving chattels). It is also argued that, under what may be called the Winkfield rule, a person who has possession, or a right to immediate possession, in respect of a chattel, is, prima facie, to be presumed to be the ‘absolute and complete owner’ of the chattel, ie the holder of a general property interest that is supreme and which comprises a right to immediate possession. Hence, according to the account presented in the book, the Possessory Right View is mistaken, but the Strong Proprietary Interest View and a version of the Presumed Property View should be accepted.

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Pix4free.org Creative Commons 3 - CC BY-SA 3.0

My thinking on this point has evolved over time. In some earlier work,  I argued that a convincing account of the law must engage with, and not simply sideline, cases, such as The Winkfield, in which the court’s ruling was unequivocally based on the Presumed Property View. I still think that is correct, but of course it does not mean that we have to accept the Presumed Property View as the best view.  Indeed, one strategy is to argue that cases adopting that view rest on a conceptual error. Professor Swadling has advanced a forceful and influential version of this argument. According to Swadling, presumptions, by their very nature, are methods of proof of facts and whether a person has a proprietary interest is not an issue of fact. For the reasons given in chapter 2 of the book, I do not accept Swadling’s argument. No reason has been given for thinking that it is conceptually impossible for a legal rule to require a court to presume (ie take as true) a proposition of law (as opposed to a proposition of fact). The better view, it seems to me, is that some presumptions are methods of proof of facts, but not all are.

Another approach is to argue that there are two conflicting lines of authority—one supporting the Strong Proprietary Interest View, the other supporting the Presumed Property View. I believe that this is essentially correct insofar as land is concerned. In chapter 4 of the book, I explore a number of 18th and 19th century cases in which the courts maintained that C’s possession of land is evidence of, or gives rise to a presumption that, C has a freehold estate in the land. I also explain, however, how and why this rule was eventually superseded by a rule of acquisition, under which possession of land does actually give rise to a fee simple estate.

It might be thought that a similar story could be told in relation to chattels. However, the rule of presumption that applies to chattels (ie the Winkfield rule) is significantly different, in content, from the old rule that applied to land, and this has important implications. As I have said, the Winkfield rule provides that certain persons are to be presumed to have, not merely a general property interest, but absolute and complete ownership, that is, a general property interest that is supreme (ie the best such interest in the chattel) and which comprises a right to immediate possession (ie it is an interest in possession, as opposed to in reversion). It is not incoherent for the law to actually confer a general property interest on a mere possessor and to also provide that, for certain purposes, the possessor is to be presumed to have the best general property interest. Indeed, it seems to me, as I have explained in detail elsewhere, that there are reasons for the rule conferring general property interests on possessors to be supplemented by a rule of presumption (though not exactly the Winkfield rule).

What role does the concept of ownership play in this analysis? A central concern of chapter 7 is to determine whether a person who acquires a fee simple or a general property interest through possession thereby becomes the or an owner of the thing. This is one aspect of a broader issue, namely, how the general concept of ownership relates to the technical concepts of English property law. It seems to me that this is a matter that it is appropriate for the legal academy to consider, not least because ownership is a pervasive idea which has played a momentous role in legal and political thought.

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Andy F / TfL lost property office on Baker Street / CC BY-SA 2.0

It is often said that, in English law, land cannot be owned at all, and some would say the same about chattels. So it was necessary to begin by addressing the issue of whether land and chattels can be owned according to English law and, to do this, one needs to have a sound understanding of the nature of ownership. Accordingly, the first part of chapter 7 discusses the nature of ownership in general and then examines whether, in English law, land and chattels can be owned. I conclude that they can be and I go on to consider the relationship between ownership and the interest acquired through possession. I argue that the holder of the ‘best title’ (eg the supreme fee simple absolute in possession) may, depending on the circumstances, have ownership, but that where a person acquires an ‘lesser title’ (eg an inferior fee simple) she does not thereby acquire ownership, for important features of ownership are missing.

It is true that, where a person, X, owns land or chattels, one can give a precise and accurate description of the nature of X’s interest using the technical terminology of the law, without mentioning ownership. One might say, for example, that X has the best general property interest in a car, that this interest comprises a right to immediate possession, and that X holds the interest beneficially/outright. Does this mean it is not helpful for a lawyer to use the language of ownership in connection with X’s interest? I suspect there is no general answer to this question—whether it is helpful to talk of ownership will depend upon the context (who is the audience? What is the purpose of the discussion? etc.) In many legal contexts, it will not be helpful for lawyers to use ‘ownership’, which is certainly a vague term. There are reasons why lawyers tend to use more precise terms. But in other contexts, the term will be useful.

In any case,  ownership is a significant aspect of how people conceptualise their relationship with things, including land and goods, and there are sound reasons for legal scholars to take these conceptualisations seriously and to consider how they relate to the technical concepts of the law. The importance of ownership to how people understand their relationship to land is illustrated by the Law Commission’s recent work on commonhold and leasehold reform, which focuses on “home ownership”, notes that “many people own, or aspire to own, a home”, and recognises that many long leaseholders regard themselves as “owners”.

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How to cite this blogpost (Harvard style)

Rostill, L. (2021). Possession, Relative Title, and Ownership in English Law. Available at: https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2021/06/possession-relative-title-and-ownership (Accessed [date])