1. a. A mandament van spolie is a possessory remedy, which results in the “… recovery of lost possession….” However, the mandament van spolie is only available if the right to possession has been seriously infringed upon by the respondent(s). In other words it can only be granted if the actions of the respondent prevent the “… possessor from using the property as he [so] wishes…”.
In addition to this, the applicant has to prove that he/she has had undisturbed possession of the object whether it be movable or immovable and that he/she was unlawfully, forcibly or wrongfully deprived of said possession. This also applies when “…a person has been deprived unlawfully of his quasi-possession of a movable or immovable incorporeal.”
Once these requirements are met the court is able to restore the status quo ante. It is important to note that even the “…possession by a thief is protected … [due to the fact] that [whether the] possession is wrongful or illegal is irrelevant as that would go to the merits of the dispute.” This is to ensure that no one is able to take the law into one’s hand and that no one can forcibly or wrongfully remove one’s possession (without one’s consent).
This is evident in the case of Afzal v Kalim since the applicant proved that he had undisturbed possession of his property and master bedroom and that the respondent (who co-owned but was not in possession of the property) wrongfully deprived him of said possessions, thus a mandement van spolie was granted.
b. Rule nisi means to show cause. This means that the judgement of the court is final and binding unless the respondent can show any legal justifiable cause or defence as to why the judgement should not apply or be granted. This needs to be ...
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...ds to give the lessee and local municipality a written notice two weeks (14 days) before the matter is due to be heard in court. In the notice the date, time and venue where the matter is going to heard needs to be stated clearly. If the lessee has been occupying the property for more than six months the municipality needs to provide a report to the court stating its “…ability to provide alternative accommodation, should the lessee be evicted.” In addition the applicant and the lessee need to provide all relevant information to the court so that it may make a just and equitable judgement.
This in turn protects the lessee and the owner, as their rights and circumstances are taken into account, thereby ensuring that the parties are not exploited. In addition to this, the requirements as stipulated in PIE ensures that the values of the constitution are upheld.
3. Procedural History: This matter comes before the court on motions of defendants for judgment notwithstanding the verdict, for new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure, and for amended judgment. We have considered defendants' motions collectively and individually and conclude that neither a new trial, judgment notwithstanding the verdict, nor amended judgment is warranted. The evidence supports the jury's verdict.
When the cops impound a vehicle they have to take an inventory of what is in the vehicle for protection, legal responsibility, and usefulness. An impounded vehicle is in the police’s possession, and they move it to a safe location such as a garage, or the police lot.
The importance of social context in Land Law and the reforms which have occurred as a result cannot be ignored or their significance understated. In particular is the impact of the shift in the twentieth century to ‘emergence of a property owning, particularly a real-property-mortgaged-to-a-building-society-owning-democracy’. Such growth could hardly have been anticipated when the LPA 1925 was drafted and subsequently became statute. As a consequence of this growth the doctrine of the resulting trust and to a greater extent, the constructive trust became a robust mechanism by which non legal owners could establish beneficial interests in the home. Swadling comments on the ‘complete change in attitude’ between the emphasis on security of ownership of the home in Boland and the free marketability of land which we see in Flegg. He states ‘one wonders what has happened to the demands of social justice which justified their Lordships decision in 1980 (in Boland) over such a brief passage of time’. Did the House of Lords fail to resolve the very practical issue with which they were presented that had evolved over the passage of social change since the drafting of the 1925 legislation?
settlement, though subject to the sovereignty of the crown. The only party can loose in a
b. If say that case is admiralty/maritime case, governed by admiralty law, is to say that substantive admiralty law applies.
land if you can pay for it. If you are accused of a crime in the
As for adverse possession, it can be defined as when a person can acquire legal ownership
In the case of Perry & others v SOCA (2012) Mr Perry was convicted, imprisoned and fined in Israel for offences arising from a pension scheme. SOCA became aware of £14m in two bank accounts in England and Wales, property in a number of jurisdictions outside the UK, antiques and works of art and obtained a worldwide freezing order. Mr Perry successful appealed as the courts ruled that an English court has no jurisdiction abroad. In this case the judge referred to the Strasbourg Convention and found “where POCA speaks of ‘property’ in the context of these processes, the property is worldwide … No power is granted to authorities within the United Kingdom to secure or realise property that is situated
-Court must be convinced that failure to comply with an agreement will lead to one of the parties to suffer prejudice. Court will protect innocent party, will provide remedy
...e correspondence is to be given to the public, the method is not important; it is equally injurious whether done by sending an officer to force locks and take it, or by compelling the person having the custody to produce it.
modern law, they have a variety of items, including intoxicating liquors, gambling implements, counterfeiters' tools, burglars' tools, smuggled goods, obscene literature, narcotics, illegal firearms and any article the possession of which is a crime or which may be used in evidence. (Encarta Online) The warrant must specify the place where the search is to be made and the property to be seized. An officer cannot get a warrant from a judge in any circumstance. (Grolier Encyclopedia) The officer may have to give a reasonable cause. As ruled in the case of Illinois v. Gates in 1983, ?to establish probable cause, one must show a probability of criminal activity; a prima facie hearing is not required.? (Illinois v. Gates) The accused has the right to fight the grounds when the war...
When the government seizes a property it must be for the public interest. The seized
al (2015), Criminal forfeiture needs at least a criminal determination for a conviction to provide for a lawful provision in depriving people of their possessions. By comparison, civil forfeiture provides for law enforcers to take possessions from people with no real criminal convictions yet or without even charges of any crime; thus, making it without effort for the government to get property and harder for civilians to oppose. From the years 1997 to 2013 it was found that only 13 percent from the Department of Justice forfeitures were criminal in nature and 87 percent were civil forfeitures. Within the civil forfeitures, 88 percent of which, have taken place administratively wherein forfeitures ensue inevitably when an owner fails to challenge the forfeiture in court for any other reason at all, even for the reason of missing the deadline to file a claim or not affording a lawyer for the trial. The forfeited property is mainly assumed to be from a guilty owner without an unbiased arbiter in as much as the form of a judge in determining whether it should be permanently withheld from the
Tooher, Joycey, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 Australian Property Law Journal 117
The use of asset forfeiture has been a problem for many years, and will continue to be for the next decades. According to Neubauer and Fradella (2014), asset forfeiture is defined as the government’s ability to seize personal assets that was obtained a crime or used to commit a criminal act. The assets obtained can be a place of business, cars, cash, and etc. The issue with asset forfeiture is that it has been made too easy for law enforcement officials to seize assets that belong to innocent people, especially since civil asset forfeiture requires a low burden of proof.