Cecily Zamora
Possession is a critical concept in common law, underpinning property law and transactions. It refers to the exercise of dominion over property, excluding others, and requires an intention to possess and assert control. Possession can be obtained in various ways, including apprehension, seizure, or transfer from another party. Notably, possession is distinct from ownership, and it can be temporary, as in bailment, where ownership is separated from possession. Possession itself is a property right, and it can lead to ownership over time, as an owner's rights may terminate. Possession is a key factor in determining control and rights over property, and it is often proven by acts of control and surrounding circumstances.
| Characteristics | Values |
|---|---|
| Definition | Possession is the exercise of dominion by a person over property to the exclusion of others. |
| Importance | Possession is important as it gives the possessor certain rights over the property, such as the right to benefit from it, transfer it, or recover it if lost. |
| Types | Possession can be physical or 'actual possession', possession as attributed to someone by law, a right to possession, or 'constructive possession'. |
| Intention | To possess something, one must have the intention to possess it and an apparent purpose to assert control over it. |
| Ownership | Possession is related to but distinct from ownership. Possession can be transferred or acquired without the owner's consent, and long-term possession can lead to ownership. |
| Bailment | A temporary transfer of possession, often separating ownership and possession, such as in the case of a library book. |
| Evidence | Possession can provide evidence of ownership but does not prove it. Acts of control and surrounding circumstances can prove intention to possess. |
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What You'll Learn
Possession as a property right
Possession is one of the most important concepts in property law. In common law countries, possession is itself a property right. Possession of a thing can be obtained without anyone else's consent in a few ways: by taking possession of something that has never been possessed before (for example, by catching a wild animal or creating a new thing), by finding something that someone else has lost, or by taking something from another person without their consent.
The right of possession is a rebuttable presumption, and evidence to the contrary may be offered to establish who has the legal right of possession. Possession can be transferred from one party to another through a two-sided process, with the intention to transfer possession. Most property is obtained with the consent of the previous possessor—it may have been purchased, received as a gift, leased, or borrowed. The transfer of possession of goods is called delivery, while for land, it is common to speak of granting or giving possession.
A temporary transfer of possession is called bailment, which often involves the separation of ownership and possession. For example, a library owns its books while they are possessed by its patrons, and the library will have the right to possess them again when the loan period ends. Another common transaction involving bailment is a conditional sale or hire-purchase, where the seller lets the buyer take possession of a thing before it is paid for in full. Once the buyer has paid the full purchase price in instalments, ownership is transferred from the seller to the buyer.
In civil law countries, possession is not a right but a legal fact that enjoys certain protections under the law. It can provide evidence of ownership but does not satisfy the burden of proof. Possession is a factual state of exercising control over an object, whether the object is owned or not. Only legal, bona fide, and regular possession (not acquired through force or deceit) can become ownership over the passage of time.
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Intention to possess
Possession is a crucial concept in property law, encompassing three related but distinct legal concepts: possession, right of possession, and ownership. In common law countries, possession is a property right, and an intention to possess, or 'animus possidendi', is an essential component of possession. This intention to possess involves the subjective intention to exercise single and exclusive control over property, with the purpose of asserting control and excluding others.
To establish intention to possess, an individual must demonstrate both control and intention. This can be achieved through acts of control and the surrounding circumstances, indicating an intention to possess something for the time being. For example, installing a locked gate may not be sufficient to demonstrate an unequivocal intention to possess land, as seen in the case of Littledale v Liverpool College [1900]. However, acts such as fencing in can be indicative of an intention to possess. In Clowes Developments v Walters (2005), it was held that a squatter's belief in having permission from the owner negated their claim of adverse possession, highlighting the importance of clear actions demonstrating intention.
The intention to possess can be distinct from the intention to own. For instance, in Powell v McFarlane (1977), it was established that demonstrating an intention to own the land is not necessary. Instead, the intention to exclude the world at large, including the paper title owner, is key. This exclusion can be reasonably practicable and within the boundaries of the law. Furthermore, the intention to possess does not necessitate a confrontational or knowing removal of the true owner from possession.
It is important to differentiate between the intention to obtain possession and the intention to possess something illegally. For example, possessing a place accessible to the public may not always indicate an intention to possess everything within that space. Additionally, possession can be obtained without the consent of the previous owner, as long as it is not acquired through force or deceit. This type of possession is protected by the law and can lead to ownership over time.
In summary, the intention to possess is a critical aspect of possession in common law, requiring both control and intention. This intention involves the desire to exercise exclusive control and assert dominion over property, excluding others. While intention alone is not sufficient, it must be manifested through objective actions that indicate an intention to possess to the owner.
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Acquisition of possession
Possession is a crucial concept in property law, and in common law countries, it is considered a property right. Possession is defined as the exercise of dominion by a person over property to the exclusion of others. To possess something, one must have the intention to possess it and the apparent purpose to assert control over it. This intention, or 'animus possidendi', is a key component of possession.
- Apprehension: Taking an object that is not in someone else's possession.
- Seizure: Taking an object that is already in someone's possession.
- Transfer: Possession can be handed over from one party to another, with the intention to do so. Most property is obtained in this way, through purchase, gift, lease, or borrowing.
- Bailment: A temporary transfer of possession, often seen as a separation of ownership and possession. For example, a library owns a book but lends it to a borrower, who possesses it temporarily.
- Adverse Possession: A contentious method of acquiring property, where a person without legal title to a piece of property, usually real estate, may acquire legal ownership based on continuous possession or occupation without the permission of the legal owner. This is often referred to as 'squatter's rights'. The specific requirements for adverse possession vary by jurisdiction, but generally, the possession must be non-permissive, actual, open, notorious, exclusive, adverse, and continuous for a prescribed period, after which the original owner's rights are extinguished.
It is also possible to obtain possession of something that has never been possessed before, such as catching a wild animal or creating a new object. Additionally, finding something lost by someone else or taking something from another without their consent are ways to acquire possession.
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Temporary transfer of possession
Possession is one of the most important concepts in property law. In common law countries, possession is a property right. The owner of a property has the right of possession and may assign that right wholly or partially to another who may then also assign the right of possession to a third party.
A temporary transfer of possession is called bailment. Bailment is often regarded as the separation of ownership and possession. For example, a library owns a book but a reader possesses it and has the right to possess it until the end of the borrowing period.
A common transaction involving bailment is a conditional sale or hire-purchase, in which the seller lets the buyer have possession of the thing before it is paid for. The buyer pays the purchase price in instalments and, when it is fully paid, ownership of the thing is transferred from seller to buyer.
Another example of a temporary transfer of possession is a lease. When a person leases an apartment, they receive some rights (possession, use) while the landlord retains others (disposal, modification).
In English law, there is no exhaustive definition of possession as it depends on the circumstances and the object, or right, that is said to be in someone’s possession.
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Possession and ownership
Possession is one of the most important concepts in property law. In common law countries, possession is itself a property right. The owner of a property has the right of possession and may assign that right wholly or partially to another who may then also assign the right of possession to a third party. For example, an owner of residential property may assign the right of possession to a property manager under a property management contract, who may then assign the right of possession to a tenant under a rental agreement.
In law, possession is the exercise of dominion by a person over property to the exclusion of others. To possess something, a person must have an intention to possess it and an apparent purpose to assert control over it. A person may be in possession of some piece of property without being its owner. The possession of property is commonly regulated under the property law of a jurisdiction. An intention to possess (sometimes called animus possidendi) is the other component of possession. All that is required for this criterion is an intention to possess something for the time being.
In common law countries, the intention to possess a thing is a question of fact that can be proven by acts of control and surrounding circumstances. It is possible to intend to possess something and to actually possess it without knowing that it exists. Possession may be considered in four senses: firstly, physical or 'actual possession'; secondly, possession as attributed to someone by law; thirdly, a right to possession, with the authorization of another; and fourthly, 'constructive possession', an inferred right or intention to hold possession. In its most common usage, possession implies de facto or 'actual possession'. This normally means that there is some physical presence, and not merely some entitlement in law.
It is possible to obtain possession of a thing without anyone else's consent. For example, a person might take possession of something which has never been possessed before, such as by catching a wild animal or creating a new thing, such as a loaf of bread. Possession acquired without consent is a property right which the law protects. It gives rise to a right of possession which is enforceable against everyone except those with a better right to possession. Possession of a thing for long enough can become ownership by termination of the previous owner's right of possession and ownership rights.
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Frequently asked questions
Possession is the exercise of dominion by a person over property to the exclusion of others. This can be further broken down into four types: physical or 'actual possession', possession as defined by law, a right to possession, and ''constructive possession',', which is an inferred right or intention to hold possession.
Possession is important in common law because it is a property right. Possession can be obtained without consent and is protected by law. It is also important because it can be transferred from one party to another.
One loses possession of something when they part with actual control of it. In the case of real estate, this can be the transfer of rent and profits or the right to receive the same.
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