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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.
Intention to possess
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. For example, someone who intends to possess a suitcase also intends to possess its contents even if they are unknown. It is important to distinguish between the intention sufficient to obtain possession of a thing and the intention required to commit the crime of possessing something illegally, such as banned drugs, firearms or stolen goods. The intention to exclude others from accessing a suitcase and its contents does not necessarily amount to the guilty mind of intending to possess its contents illegally.
When people possess places to which the public has access, it may be difficult to know whether they intend to possess everything within those places. In such circumstances, some people make it clear that they do not want possession of the things brought there by the public. For example, it is not uncommon to see a sign above a coat rack in a restaurant that disclaims responsibility for items left there.
Importance of possession
Possession is one of the most important concepts in property law. There are three related and overlapping but not identical legal concepts: possession, right of possession and ownership.
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. There is a rebuttable presumption that the possessor of property also has the right of possession, and evidence to the contrary may be offered to establish who has the legal right of possession to determine who should have actual possession, which may include evidence of ownership (without assignment of the right of possession) or evidence of a superior right of possession without ownership. Possession of a thing for long enough can become ownership by termination of the previous owner's right of possession and ownership rights. In the same way, the passage of time can bring to an end the owner's right to recover exclusive possession of a property without losing the ownership of it, as when an adverse easement for use is granted by a court.
In civil law countries, possession is not a right but a (legal) fact, which enjoys certain protection by the law. It can provide evidence of ownership but does not in itself satisfy the burden of proof. For example, ownership of a house is never proven by mere possession of a house. Possession is a factual state of exercising control over an object, whether the object is owned or not. Only a legal (possessor has legal ground), bona fide (possessor does not know lack of right to possess) and regular possession (not acquired through force or by deceit) can become ownership over passage of time. A possessor enjoys certain judicial protection against third parties even if he is not the owner.
There may be varying degrees of rights to possession. For example, if you leave a book that belongs to you at a cafe and the waiter picks it up, you have lost possession. When you return to recover the book, even though the waiter has possession, you have a better right to possession and the book should be returned. This example demonstrates the distinction between ownership and possession: throughout the process you have not lost ownership of the book although you have lost possession at some point; or instead, the book may have been owned by a third party (such as a lending library) throughout, despite the changes in possession.
Obtaining possession
Possession requires both control and intention. It is obtained from the first moment that both those conditions exist simultaneously. Usually, intention precedes control, as when you see a coin on the ground and reach down to pick it up. Nevertheless, it is conceivable that a person might obtain control of a thing before forming the intention to possess it. Someone who unknowingly sat on and therefore had control of a $10 note on the seat of a train could obtain possession by becoming aware of the note and forming the intention to possess it. People may also intend to possess things that are left without their knowledge in spaces that they control.
Possession can be obtained by a one-sided act by which factual control is established. This can take the form of apprehension (taking an object not in someone's possession) or seizure (taking an object in someone's possession). It can also be obtained through a two-sided process of handing over the possession from one party to another. The party handing over possession must intend to do so.
Possession acquired by consent
Most property possessed is obtained with the consent of someone else who possessed it. They may have been purchased, received as gifts, leased, or borrowed. The transfer of possession of goods is called delivery. For land, it is common to speak of granting or giving possession.
A temporary transfer of possession is called a bailment. Bailment is often regarded as the separation of ownership and possession. For example, the library continues to own the book while you possess it and will have the right to possess it again when your right comes to an end. 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 installments and, when it is fully paid, ownership of the thing is transferred from seller to buyer.
Possession acquired without consent
It is possible to obtain possession of a thing without anyone else's consent. First, you might take possession of something which has never been possessed before. This can occur when you catch a wild animal; or create a new thing, such as a loaf of bread. Secondly, you might find something which someone else has lost. Thirdly, you might take something from another person without their consent. 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.
Forms of transferring possession
There are various forms of transferring possession. One can physically hand over the object (e.g. handing over a newspaper bought at the newsstand) but it is not always necessary for the party to literally grab the object for possession to be considered transferred. It is enough that the object is within the realm of factual control (e.g. leaving a letter in the letterbox). Sometimes it is enough for a symbol of the object which enables factual control to be handed over (e.g. handing over the keys to a car or a house). One may also choose to terminate possession, as one throws a letter in the trash. Possession includes having the opportunity to terminate possession.
See also
- Unlawful possession
- Drug prohibition
- Criminal possession of a weapon
- Possession of stolen goods
- Minor in Possession
- Other special conditions of possession
- Constructive possession
- Adverse possession
- Right of possession
- Debtor in possession
- Owner, Lessor, Renter, Landlord
- Land tenure
- Lessee, Renter, Tenant
- Lease, Renting, Tenancy
- Possession is nine-tenths of the law
References
- Garner, Bryan A., ed. (2009). Black's law dictionary (9th ed.). St. Paul, MN: West. p. 1281. ISBN 978-0314199492.
- "§ 14". American Jurisprudence 2d. Vol. 35. West Publishing Companyedition=2nd. 1940.
- He Kaw Teh v R [1985] HCA 43, (1985) 157 CLR 523 (11 July 1985), High Court (Australia).
Decker, John F. "Illinois Criminal Law." Newark, NJ: Matthew Bender & Co. 4th Ed. 2006.
This article has multiple issues Please help improve it or discuss these issues on the talk page Learn how and when to remove these messages This article needs additional citations for verification Please help improve this article by adding citations to reliable sources Unsourced material may be challenged and removed Find sources Possession law news newspapers books scholar JSTOR December 2014 Learn how and when to remove this message This article needs attention from an expert in Law The specific problem is contradictory statements WikiProject Law may be able to help recruit an expert February 2015 Learn how and when to remove this message Look up possession in Wiktionary the free dictionary 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 Intention to possessAn 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 For example someone who intends to possess a suitcase also intends to possess its contents even if they are unknown It is important to distinguish between the intention sufficient to obtain possession of a thing and the intention required to commit the crime of possessing something illegally such as banned drugs firearms or stolen goods The intention to exclude others from accessing a suitcase and its contents does not necessarily amount to the guilty mind of intending to possess its contents illegally When people possess places to which the public has access it may be difficult to know whether they intend to possess everything within those places In such circumstances some people make it clear that they do not want possession of the things brought there by the public For example it is not uncommon to see a sign above a coat rack in a restaurant that disclaims responsibility for items left there Importance of possessionPossession is one of the most important concepts in property law There are three related and overlapping but not identical legal concepts possession right of possession and ownership 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 There is a rebuttable presumption that the possessor of property also has the right of possession and evidence to the contrary may be offered to establish who has the legal right of possession to determine who should have actual possession which may include evidence of ownership without assignment of the right of possession or evidence of a superior right of possession without ownership Possession of a thing for long enough can become ownership by termination of the previous owner s right of possession and ownership rights In the same way the passage of time can bring to an end the owner s right to recover exclusive possession of a property without losing the ownership of it as when an adverse easement for use is granted by a court In civil law countries possession is not a right but a legal fact which enjoys certain protection by the law It can provide evidence of ownership but does not in itself satisfy the burden of proof For example ownership of a house is never proven by mere possession of a house Possession is a factual state of exercising control over an object whether the object is owned or not Only a legal possessor has legal ground bona fide possessor does not know lack of right to possess and regular possession not acquired through force or by deceit can become ownership over passage of time A possessor enjoys certain judicial protection against third parties even if he is not the owner There may be varying degrees of rights to possession For example if you leave a book that belongs to you at a cafe and the waiter picks it up you have lost possession When you return to recover the book even though the waiter has possession you have a better right to possession and the book should be returned This example demonstrates the distinction between ownership and possession throughout the process you have not lost ownership of the book although you have lost possession at some point or instead the book may have been owned by a third party such as a lending library throughout despite the changes in possession Obtaining possessionPossession requires both control and intention It is obtained from the first moment that both those conditions exist simultaneously Usually intention precedes control as when you see a coin on the ground and reach down to pick it up Nevertheless it is conceivable that a person might obtain control of a thing before forming the intention to possess it Someone who unknowingly sat on and therefore had control of a 10 note on the seat of a train could obtain possession by becoming aware of the note and forming the intention to possess it People may also intend to possess things that are left without their knowledge in spaces that they control Possession can be obtained by a one sided act by which factual control is established This can take the form of apprehension taking an object not in someone s possession or seizure taking an object in someone s possession It can also be obtained through a two sided process of handing over the possession from one party to another The party handing over possession must intend to do so Possession acquired by consent Most property possessed is obtained with the consent of someone else who possessed it They may have been purchased received as gifts leased or borrowed The transfer of possession of goods is called delivery For land it is common to speak of granting or giving possession A temporary transfer of possession is called a bailment Bailment is often regarded as the separation of ownership and possession For example the library continues to own the book while you possess it and will have the right to possess it again when your right comes to an end 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 installments and when it is fully paid ownership of the thing is transferred from seller to buyer Possession acquired without consent It is possible to obtain possession of a thing without anyone else s consent First you might take possession of something which has never been possessed before This can occur when you catch a wild animal or create a new thing such as a loaf of bread Secondly you might find something which someone else has lost Thirdly you might take something from another person without their consent 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 Forms of transferring possession There are various forms of transferring possession One can physically hand over the object e g handing over a newspaper bought at the newsstand but it is not always necessary for the party to literally grab the object for possession to be considered transferred It is enough that the object is within the realm of factual control e g leaving a letter in the letterbox Sometimes it is enough for a symbol of the object which enables factual control to be handed over e g handing over the keys to a car or a house One may also choose to terminate possession as one throws a letter in the trash Possession includes having the opportunity to terminate possession See alsoUnlawful possession Drug prohibition Criminal possession of a weapon Possession of stolen goods Minor in Possession Other special conditions of possession Constructive possession Adverse possession Right of possession Debtor in possession Owner Lessor Renter Landlord Land tenure Lessee Renter Tenant Lease Renting Tenancy Possession is nine tenths of the lawReferencesGarner Bryan A ed 2009 Black s law dictionary 9th ed St Paul MN West p 1281 ISBN 978 0314199492 14 American Jurisprudence 2d Vol 35 West Publishing Companyedition 2nd 1940 He Kaw Teh v R 1985 HCA 43 1985 157 CLR 523 11 July 1985 High Court Australia Decker John F Illinois Criminal Law Newark NJ Matthew Bender amp Co 4th Ed 2006
