Occupatio (Scots law)

In Scots law, occupatio is a mode of acquiring original ownership of corporeal moveable property (tangible movable things) that belongs to no one (res nullius). It's based on the principle that a person can become the owner of something simply by taking possession of it with the intention of becoming the owner (animus domini).

The key elements of occupatio are:

• Absence of Prior Ownership (Res Nullius): The thing must be ownerless. This can be because it has never been owned (e.g., wild animals or seashells found on the beach), or because it has been deliberately abandoned by a previous owner with the intention of relinquishing all rights (derelictio). Mere loss or mislaying of property is not sufficient; the owner must have intentionally abandoned it.

• Physical Possession (Corpus): The acquirer must take actual physical control of the thing. The level of control required depends on the nature of the object. For instance, catching a wild animal in a trap would be sufficient possession, even if the animal is not immediately in hand.

• Intention to Own (Animus Domini): The acquirer must have the intention of becoming the owner. This intention is usually inferred from the act of taking possession.

Distinction from Other Modes of Acquisition:

Occupatio differs from other methods of acquiring ownership, such as:

• Derivative Acquisition (e.g., sale, gift, inheritance): Occupatio is an original mode of acquisition, meaning that the owner acquires the property directly without deriving title from a previous owner. In contrast, derivative acquisition involves the transfer of ownership from one person to another.

• Accession: In accession, ownership arises from the merging of one thing with another.

• Specification: In specification, ownership arises from the creation of a new thing from existing materials.

Examples:

• Finding and taking possession of a wild rabbit.
• Collecting seashells on a beach.
• Taking possession of furniture intentionally left on the street for collection.

Limitations:

• The principle of occupatio is subject to limitations imposed by legislation and common law. For example, environmental regulations may restrict the taking of certain wild animals or plants.

• Items found on private land may be subject to the landowner's prior claim, even if apparently abandoned.

• The principle does not generally apply to land or buildings, as all land in Scotland is ultimately owned by the Crown.