In other words, in principle a pers

In other words, in principle a person in possession of land must either have a
possessory title to ownership (i.e. as an adverse possessor) or have a lease of the
land, or have some other proprietary interest in the land which carries with it the
right to possess it.
We have said that this is clear in principle, but it has to be said that this is not a
view uniformly recognised by the courts. In order to assess the significance of these
apparent departures from principle, however, it is first useful to enumerate the
recognised ways in which possession can be split off from ownership in the case of
land, apart from by the grant of a lease.
The list is not long: if you are in possession of land and you are not the absolute
beneficial owner, or a trespasser with a possessory title to ownership, or a tenant,
you will fall within one of the following categories:
1 A legal mortgagee who has exercised his right to possession. A legal mortgagee has an
inherent right to possession of the mortgaged land. As we see in Chapter 18, this is
because a legal mortgagee of land either has, or is deemed to have, a lease of the land.
2 A mortgagor allowed to remain in possession by the mortgagee. It is established law that
an owner who has granted a legal mortgage but has been allowed to remain in
occupation pending default is in possession. This is so whether he has been allowed to
remain in possession at the will of the mortgagee or on contractually enforceable terms
that the mortgagee will not exercise its right to possession until default. After some
uncertainty, the courts concluded that, in such circumstances, the mortgagor does not
have a merely personal right to occupy as against the mortgagee, nor is he a subtenant
of the mortgagee (unless it is clear that this was what the parties intended). Instead, he
has a sui generis possessory right, enforceable against third parties and enforceable
against the mortgagee. See further Chapter 18.
3 A pledgee. If it is possible to have a pledge of land (which, as we see in Chapter 18, is not
certain), then what the pledgee has is possession of the land and a right to remain in
possession until performance of the obligation secured by the pledge. This is because
this is what a pledge is – a delivery of possession of a thing as security for the payment
of a debt or performance of some other obligation.
4 A beneficiary under a private trust of land. In a private trust of land, which necessarily
involves ownership being split between trustee and beneficiary, a beneficiary in some
circumstances has a right to possession enforceable against the trustee and the rest of
the world (although capable of being overreached (and therefore not affect third
parties) by certain transactions entered into by the trustee). So, although it is technically
possible for a trustee of land to grant a beneficiary a lease of the land (or any other
interest in it), it is also possible for a beneficiary to have a right to possession qua
beneficiary as against the trustee – i.e. the right to possession can be attributable solely
to the trustee–beneficiary relationship. As we noted in Chapter 7, this is not true of a
public charitable trust (or a private purpose trust, although this is less likely to arise).
In a public trust, the ‘beneficiary’ of the trust is the abstract purpose of the trust (e.g. to
provide housing for homeless persons). Any land held by the trustees is held on trust to
carry out that purpose, not on trust for those on whom the trustees choose to confer
benefit (i.e. the homeless people they house). If therefore those people are given a right
626 Property Law
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to possession of the land enforceable against the trustees, this cannot be referable to
any trustee–beneficiary relationship – it can only arise because the trustees have
granted them some property interest such as a lease.