Types of Possession in Law Explained

What is Possession?

Possession, in law, refers to the physical control or occupation of property. It is a fundamental legal concept that has significant practical implications. Though often confused with ownership, possession is not the same as ownership. While ownership implies legal title to property or land, possessing a property – whether residential or commercial – doesn’t necessarily grant the holder of the property legal rights.
The concept of possession has been recognised in law for centuries, from English common law through to the Napoleonic Code in France and throughout the Western world.
In modern law , considering the general concept of possession is necessary when discussing ownership – immovable and movable property – and real and personal property.
Land is a fundamental aspect of possession in Anglo-American law. In England, original possession is generally acquired by discovery. Not only is possession the basis for ownership, but it confers various rights upon the possessor. It presents the material and legal status of something belonging to a person or group of people, and can be created by acts or acquiescence.
Possession, as a civil law concept, applies to land and any other property (including intellectual property). Of course, there are specific rules for movables as opposed to immovables, ships versus aircraft, and so on.

Actual Vs. Constructive Possession

Actual and constructive possession are two distinct types of possession recognized by law. Under English criminal law, actual possession is physical possession. The possession of something on your person, or holding something in your hand, is actual possession. However, constructive possession means that although you may not have the item on you, you still have the power and intention to control it.
In order for you to be in constructive possession of something, you must have access and control over it. If you have access and control over the item, then you are considered to be in possession of it. That does not mean actual possession. It means constructive possession, which is considered an offense in itself. Examples of constructive possession can be found in a range of scenarios.
If you had ten cars of your own avoiding property tax in your garage, even though they were not in your possession, you would be found guilty of avoidance of tax. You would be found guilty of this tax offence; even if it was your brother that lived at your house and kept the vehicles there. The intention for your brother to store the vehicles at your house would be enough for both of you to be charged with this crime.
Another example of constructive possession can be seen in someone receiving goods that have been stolen. The obvious crime involved here would be receiving stolen goods. If you were to engage with someone who was selling stolen goods and did not report them to the police, then you would be found guilty of constructive possession.

Joint Possession Defined

A further category of possession occurs when either two or more persons jointly take possession of an object. Sometimes such joint possession has a clear analog in the civil law, such as the French regime of indivision (see French / Civil Law). Other times, however, the concept of the property being jointly possessed reflects a legal status or circumstance rather than an actual possession of the object on the part of multiple parties, e.g., the situation of a spouse in relation to the property of her husband. If two or more persons jointly possess a res, they may be said to possess it jointly; for instance, if two men jointly catch a fish, or the heirs of a decedent hold his estate in common. A personal claim is generally favored against someone otherwise in possession of property if the litigant can demonstrate superior title to the res or an apparent right of joint ownership with the occupant — absent such a demonstration, possession will be held to lie in the person who currently possesses the property.

Adverse Possession Defined

Adverse possession, at its core, is a legal doctrine that allows a person to claim legal ownership over land under certain conditions. To establish such an ownership, it’s imperative to first understand the residency and other requirements concerning adverse possession.
Essentially, the concept of adverse possession holds that if someone possesses land in a hostile, actual, open, continuous or exclusive manner, then they may acquire legal ownership over the land in question unless another individual or entity with a greater legal claim to the land comes forward.
There are technical elements that must be met for a claimant to have a valid adverse possession claim, but the most important or useful concept to know about adverse possession is that you must physically possess the property in some manner. This goes back to the purpose of adverse possession, which is to allow claims to lost or abandoned property, or land that is rented out but never used by tenants. If someone has been living on or using a property, the thought is that they have a greater claim to it than an individual or entity who never uses it at all.
In order to make a successful adverse possession claim, you’re going to need to meet certain elements, including:
It’s important to note that if a claimant does not meet the requirements above, they do not legally own the property under adverse possession. At this point, the original owner is still technically the owner, and unless the claimant meets these elements over a long period of time, they cannot be awarded ownership of the land in question.

Possession in Criminal Law

Criminal law also uses the term possession, with a much narrower and more specific definition. Generally, this is applied to illegal items such as drugs, and emphasizes that the person being charged had direct control over the item that was illegal. In this way, possession can only apply to an individual or entity that has control over what a court considers a possession, such as a gold statue, a car, or something else illegal. Possession is not defined as what is currently physically held but is instead defined as the ability or ability to exert influence over the item in question.
Because this aspect of possession is sometimes difficult to prove in court, it is often difficult for the prosecution to prove, and determines the need for a criminal defense lawyer should someone find themselves facing possession charges . A defendant often has a strong argument when there is not a clear proximity between a person and the item in question. Since the burden of proof is on the prosecution to prove possession under the law, it is a defense strategy to raise doubt over the intent in question, even if the item that is illegal is found in the same vicinity as the accused.
Another issue that directly affects possession is the idea of constructive possession versus actual possession. Constructive possession means that you were present where the item was found and therefore could have had possession of it. Actual possession increases the burden of proof that it was indeed somebody’s intent to possess that item in question, while constructive possession allows the prosecution to argue that it was everybody’s possession because it was present in a specific location.

Possession in Landlord-Tenant

Possession and tenancy have a close relationship, but one does not equal the other. The possession of property is different from being a tenant of the property. These are not mutually exclusive concepts. Individual possession of land can be lawful and/or unlawful, and it is subject to the law of that land.
The right to have possession of and exclusive use of the property is held by the landlord or lessor. The right to exclusive use and possession of the property is what the agreement for the lease, rental, or hire must be in favor of. This is the right of the tenant/lessee. The rights involved in the landlord-tenant relationship are also subject to the law of the land, and that law may sometimes favor the tenant/lessee under its legal rights.
Possession gives rise to many rights of the person in possession. It also gives rise to many duties to regard the rights of others, and to share the use of the property without causing significant injury to the rights of the other person.
Where the legal right to possession is carried out, it is lawful possession. The unlawful possession of property is without the legal right to possession; it is not lawful and gives rise to legal intervention to remedy it.
Some examples of possession are owners, tenants, lessees, owners in right of persons represented, or as persons acting in some legal capacity. The relationship of a person as owner, tenant, or with some legal status, must be distinguished from the mere possession of the property.
When people who do not have the right to possession, and who take possession, the law regards the person to be a trespasser. Where a trespasser takes possession of property unlawfully, and does so in circumstances where there is no remedy at law, a judge may grant the defendant an order for ejectment. The judge does this even though an order for ejectment is likely to be refused in a similar situation, but only because of the provision of law that makes hardship, which cannot be remedied by an order of the court, grounds for an order for ejectment. The judge finds it necessary to distinguish between them and other claims for ejectment where ejectment is possible.
In many cases of unlawful possession, there will be available an order for ejectment. In the event the court ordered ejectment, then it is to be executed in the form which deprives the person of possession. The unlawful possession of land or premises, does not justify the possession of land or premises, except in circumstances where the lawful owner cannot lawfully dispose of the land.
Tenants of premises have the right to possession of the premises. Where the tenant occupies the premises and gives up possession, where he has no further right to possession, he must vacate the premises.
The unlawful eviction of the tenant, or the attempt by the landlord to exclude the tenant before the termination of the term of the lease, is unlawful. The right to possess land or premises is based on the law of the land. The effect of the rights gives rise to a right to possession of property.

Possession Vs. Custody

In most legal contexts, the idea of possession encompasses the idea of control over property, but the concept of custody does not. Where custody refers specifically to physical control over property, the standard of care associated with possession does not apply except to some extent to bailments. In other words, to have physical possession of property requires physical control and jurisdiction over the property in question, but custody can exist without possession, and it describes a different legal status.
If Aunt Edie sends you a $5 bill as a birthday gift, and you take it and put it in your pocket, you have legal possession of the $5 bill and the right to exclude everyone but Aunt Edie from interfering with it. If your greedy cousin John thinks that he is owed a birthday gift from Aunt Edie, and he competes with you over the $5, it is a trespass. However, let’s say that instead of putting the $5 bill in your pocket, you choose instead to put it on the living room table where you are having the family birthday party for Aunt Edie’s 99th birthday. John reaches for the $5 bill, and you try to block him. He successfully grabs the $5 bill, and runs. If you sue John for trespass, he is likely to successfully argue that once you placed the $5 bill on the family table, it was not yours anymore. Instead, it belonged to everyone around the table, including John. You had custody, but John had possession because he interfered with it.
Custody can also be separated from possession where legal custody of children as an example. Where custody is described as "legal," it means that there is some special relationship between the custodian and the children, but the custodian actually lacks physical control and jurisdiction over the child. The custodial parent has exclusive legal right to the child, and takes on a special care-taking burden, in part to make sure that the child engages in appropriate behavior, and obtains appropriate education, healthcare, and socialization. Because children are not owned by their parents, and to prevent people from simply "exercising their rights" with physical force, rights over children are obtained through the legal system. Thus, although parents may have physical possession of their young children (if they live with the parent), the law must actually grant the custodial parent the legal right to keep the child, whereupon once granted, the parent has legal custody over the child, but not technical possession.

Grants of Possession

When the legitimate occupant of premises finds another occupying the premises without his or her permission, this is referred to as by the law as a "dispossession". The presence of slum lords, illegal occupants and tenants that do not vacate after their lease is ended are all common legal disputes that arise when it comes to possession rights. When pursuing possession over a property through the courts, the interaction of the notice procedure in section 5(2) of the Act and the provisions of the PIE Act must always be borne in mind.
A judge will consider some of the following factors in deciding who has the superior right to possession of premises:
Where a dispossession has taken place, legal proceedings are required to determine matters of possession and can only be brought by the owner of premises against the occupier of the premises concerned.
Proceedings for possession are instituted in the Magistrate’s Court if the premises concerned do not fall within the jurisdiction of the High Court. It should be noted that the jurisdiction of the Magistrate’s Court is limited and does not apply to degree or confirmation of a judgement.
Where the premises are (for example) a block of flats, time-consuming litigation against each occupant is avoided by bringing proceedings for possession against them en masse.
It is not necessary for the occupant to appear before the court and judgment is granted in the absence of the occupant if no valid defence has been raised . However, the judgment can be evaded by the occupant if they remove themselves from the premises before the sheriff serves an eviction order.
Where a person claims that they were or currently are in possession but not in lawful possession of premises, they may bring an application against the owner (the person claiming possession) in the land claims court for protection against the PIE Act. In such an application, the applicant must establish to the satisfaction of the Court that:
Upon successfully establishing the above requirements, the court can afford the applicant relief by either refusing to order ejectment, directing that ejectment will only take place after expiry of the period set out in the order or directing that the occupier must vacate the residence concerned. A Court can extend the period of protection with or without conditions attached to the extension. The extension is a protection against the provisions of PIE for an occupier in equally bad circumstances as those contemplated in PIE.
An example of a case in which the possession of premises was disputed or contested relates to the case of City of Cape Town v Good Hope Centre. In the Good Hope Centre case, the owners of possessed land sought to have illegal occupants removed therefrom. The court held that the owners were legally obliged to provide those facing homelessness with alternative accommodation which would include interim emergency accommodation upon eviction.