Stated by a Roman Juror in Ulpian, Digest of Justinian: “Ownership has nothing in common with possession”. As Craig Anderson said in Property: A guide to Scots Law: “One may both possess and own an item of property, or neither own nor possess it. Equally, one may own without possessing or possess without owning. Neither is determined by the other. ” Possession is not clearly defined but rather has two clear elements; act of the mind and act of the body. John has recently separated with his partner Amanda and in doing so has left the house.
He has since realised that he has left behind his bike which has later been taken by Lilian. To determine whether John was in possession of the bike before Lilian removed it. The legal issues need to be discussed. The first important legal issue to be discussed is whether John was fulfilling the two requirements of possession; having an act of the body and the mind. An act of the body is a physical element which as stair says: “which is detention and holding” of the item in question, in this case the bike.
Although, John does not have “detention or holding of the item”, it can be deemed that he is still in possession of the bike. This is due to the fact that possession is not lost by temporary absence. This is due to the rule of animo solo, possession by mind alone. A case which demonstrates this is Ross’s Dairies Ltd v Glasgow Corporation 1972. In this case the: “landowners, owners of the articles poinded sought to interdict the local authority from removing or selling their articles, on the ground that the debtor had left the country a month before the poinding, and was no longer in lawful possession of the articles.
It was held however that there occupancy and possession were presumed to continue and that mere absence for one month did not rebut this presumption. The action was then dismissed”. Therefore, similarly John absence from the house is not enough for him to loss possession. Amanda is not in possession as she does not have the mental element, she is said to have ‘custody’ of the bike. Ultimately, John still has possession of the bike, as long as he can satisfy the mental element. Subsequently, then the next important legal issue was whether John was fulfilling the mental element.
As stair said it: “is the inclination or affection to make use of the thing detained”. To satisfy the requirements for the mental element there needs to be some intention to derive benefit from holding the property. In John’s case, he can be seen to have the mental element as the facts state that John while living at home used the bike every day to get to work. Presumably then, although details not given in the facts, it can be assumed that John wishes to carry on the same usage of the bike despite having moved out. Therefore, making this enough to satisfy the mental element of possession.
Therefore, from the facts outlined above it can be assumed that John was in possession of the bike before Lillian removed it. This is because of the animo solo rule stating that possession is not lost by temporary absence. John can also sufficiently satisfy the mental element causing him to be the possessor of the bike. Craig Anderson detailed: “The law gives a right to retain or recover possession without proof of any actual right in the property. ” While John is in possession of the bike, Lilian comes into the garden one night and takes it. She later states that the bike was stolen from her sometime previously.
John unknowing of the theft and in disbelief that he friend would deal in stolen goods wants to compel Lilian to return the bike. To determine the remedy the facts of the case need to be analysed. As mentioned above the law has put in place certain remedies which will allow John to do this. One possessory remedy available to John is to raise an action of spuilzie. For an action of spuilzie you do not need to prove that you are owner. Stair says: “In spuilzies the pursuer needs no other title but possession” and as John is in possession this remedy is available to him.
To successfully raise an action of spuilzie you need to show two things. The first is that you were in possession of the property in question and that you were dispossessed by the defender. As Craig Anderson states: “This is intended to be an interim remedy only …. Instead, the intention is to preserve the situation as it stands, and to discourage individuals from taking the law into their own hands”. In the present case, a successful spuilzie would result in Lillian having to return the bike or the value of the item taken.
Damages can also be given if any losses have been suffered. However, an unsuccessful action of spuilzie, if the possessor is proved not to be owner then the bike will have to be given up to the rightful owner. In this case for example if John is proved not to be the owner and Lilian is then John will have to give the bike up to Lilian. However, Lilian cannot just take the bike until ownership is proved by the courts. There are three available defences for Lilian to prevent an action of spuilzie, they are; prior consent, having lawful authority and self-defence.
However, in this case Lilian had none of these and therefore could not put forward an action of defence. A hypothetical case which was described in Property: A guide to Scots law is that of Emma and Charles. The hypothetical situation you are supposed to imagine is ‘that Charles is in possession of a valuable book, which he believes that he owns although in actual fact he may not. If Emma takes the book Charles can raise an action of spuilzie. “He will win if he can show that he was in possession and Emma disposed him. This is the case even if Emma was owner.
If it proves that Emma is the owner she can raise an action for delivery of the book and will be successful’. This is significant as the fact are very similar to that of the present case of John v Lilian. From the facts given it can be shown that John was in possession of the bike and Lilian dispossessed him. Therefore, john will get his bike back but may have it removed if Lilian is proved to be owner. As Lilian interfered with John’s possession this may be actionable and lead to a further remedy that is available to John. Possession is a real right and should be protected against interference generally speaking.