Possession Defined | Real Estate Law Explained | Cases & Statutes

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As defined and explained in this ONLINE Encyclopedia

The detention and control of property, together with the continuous and express intention to retain that property to the exclusion of others. Possession of real property generally means being on the property. "Possession expresses the closest relation of fact that can exist between a corporeal thing and the person who possesses it, implying either (according to its strictest etymology) an actual physical contact, as by sitting, or (as some would have it) standing upon a thing. Burrill, Law Dict. 313", Bryan v. Spivey, 109 NC 57, 13 So 766, 767 (1891). Possession consists primarily of actual occupancy and may be held irrespective of ownership or title. A mortgagee does not have ownership, but may have possession and the holder of a future interest has a form of ownership, but does not have possession. Possession is generally a matter of fact, but may not be lawful; whereas ownership is a right recognized and protected by law. Ownership is a right to enjoy the use and benefit thereof and usually includes the right to destroy and, especially, includes the right to dispose of the subject to another. Possession may include some of these rights, but not all. The law recognizes three essential factors to constitute an absolute right to possession: "First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention, hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no sign of being under the control of anyone, it is not possessed; hence if a piece of land is deserted and left without fences or other signs of occupation, it is not in the possession of anyone, and the possession is said to be vacant", Jowitt's Dictionary of English Law (2nd ed. London: 1977), vol. 2, p. 386. "Possession of land ordinarily involves two elements. The first element is a physical relation to the land that to a certain extent is adapted to give control over the land and to exclude other persons therefrom. The exact nature of the physical relation and the degree of control necessary to constitute this element of possession vary according to the nature of the interests that may be involved in any particular situation, and facts that constitute possession for some purpose do not do so for others. The second element is an intention to exclude others in general from the physical occupation of the land. This intent may exist either upon the part of the person having the physical relation to the land that is regarded as sufficient to satisfy that element of possession or upon the part of some person occupying such a relation to the first person that the intent of the second has the same legal effect", The American Law Institute, Restatement of Property (St. Paul, MN: 1936), § 7, Comment on Clause (a) (Clause (a) being part of the definition of 'possessory interest in land').

Roman law draws a useful distinction between corpus and animus. One acquires possession by an act of the mind and an act of the body—corpore et animo. Corpus indicates the tangible possession of something, the physical control over the entirety, including the right to use, enjoy, detain, and if one wishes (providing there is no opposing or repugnant interest) the right to destroy or change the character of the property. Animus is the intention to benefit from possession: that which may be derived as a consequence of possession without destroying or altering the nature of the property; such as is enjoyed by the beneficiary of an easement or by a usufructuary. If I lose something, I do not have the corpus, but would retain the animus, the intention to possession. On the other hand, if I have something on my property of which I am not aware, because it is hidden, I have the corpus, but not the right or animus.

    '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 (Williams & Glyn's Bank Ltd v Boland [1981] AC 487, 505, [1980] 2 All ER 408, 413 (HL)). 'Actual' possession is considered to be the most basic form of possession, being the physical detention of property; or in the case of land, actual entry and occupancy. In connection with a claim by adverse possession, "'Actual possession' is a legal concept which consists of two things: an ability to control the area and physical possession coupled with an intention to exclude others from taking possession", Ortmeyer v. Bruemmer, 680 S.W.2d 384, 392 (Mo Ct App 1984) (Bradshaw v. Ashley, 180 US 59, 21 S Ct 297, 45 L Ed 423, 426, note: "What constitutes possession" (1901)). Possession as attributed to someone by law (sometimes called 'possession at law' or 'legal possession') is that right to retain control which is protected when there is title. The adage "possession is nine-tenths of the law" only "places in a stronger light the legal truth that every claimant must succeed by the strength of his own title and not by the weakness of his antagonist", Wharton's Law Lexicon (14th ed. London: 1938). Thus, one who is in possession of land has a right to use reasonable force to keep someone from entering the land; but if another has taken possession, he may not use force to reclaim his right to possession, but he should resort to the due process of law. Possession with the authorization of another is a right that arises, for example, from a license or a lease permitting the use of land; it creates a form of title, but one that endures only for a certain period of time.

    Constructive possession (sometimes called 'legal possession' or 'possession in law') is a right to possession of land as attributed by law, without the necessity of actual possession. Thus, a person who has a registered or recorded title to land is considered to have constructive possession, except for the right of a person claiming, or who proposes to claim, a right to adverse possession, e.g. someone who encloses land or uses land for a long period in order to set up a claim to title to land. (Mere entry on land alone cannot constitute a legal right to possession (Doe d Baker v Coombes (1850) 9 CB 718, 137 Eng Rep 1073; McGrath v McGrath (1992) 26 RPR (2d) 42, 71 (Can); 2 C.J.S., Adverse Possession (St. Paul, MN), § 31)).

    It has been said (in connection with the possession of drugs) that "possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it. You may possess a thing without knowing or comprehending its nature, but you do not possess it unless you know you have it", R v Boyesen [1982] 2 All ER 161, 163. An occupier controls, and knows that he controls, his domain, but recognizes that as soon as he parts with actual control, he has lost an important element of occupation—the ability to hold the property; whereas a 'possessor' may give up actual possession without affecting his animus possidendi.

    'Possession' upon purchasing real property does not mean necessarily personal or physical entry into possession but, if a property is tenanted, a right to receive the rents and profits (Lake v Dean (1860) 28 Beav 607, 54 Eng Rep 499; Piper v Stevenson (1913) 28 OLR 379, 392 (Can); Brunson v. Bailey, 245 Ala 102, 16 So.2d 9, 11 (1943)).

    English law does not contain an exhaustive definition of possession as it depends on the circumstances and the object, or right, that is said to be in someone’s possession. However, the following principles have been established: (i) "in the absence of evidence to the contrary, the owner of land with paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession …"; (ii) "if the law is to attribute possession of land to a person who can ascribe no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi) …"; (iii) "factual possession signifies an appropriate degree of physical control. It must be single and conclusive [exclusive] possession, though there can be single possession exercised by or on behalf of several persons jointly. Thus, an owner of land and a person intruding on that land without his consent cannot both be in possession at the same time. … It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole", Powell v McFarlane (1977) 38 P & CR 452, 470–1.
    In the English statutory use of the phrase "interest in possession", 'possession' indicates that there is a "present right of present enjoyment", Pearson v IRC [1981] AC 753, 772 (HL). In that respect, it may be distinguished from a right in reversion or in remainder. However, an owner who has granted a lease has a right to possession, as possession in this context is defined to include "receipt of rent and profits or the right to receive the same, if any", Law of Property Act 1925, s. 205(1)(xix) (Settled Land Act 1925, s. 117(1)(xix)).

    In the context of a 'registered proprietor in possession', a proprietor will be in possession where: (i) the land is physically in his possession; (ii) the land is physically in possession of the person who is entitled to be registered as proprietor of the registered estate; or (iii) land is (or is treated as being) in the possession of one person by virtue of the possession of another, for example where the registered proprietor is the landlord, mortgagor, licensor, or trustee, and person in possession is, as appropriate, the tenant, mortgagee, licensee, or beneficiary (Land Registration Act 2002, s. 131). Cf. dominium, occupation.  See also bailment, constructive notice, constructive possession, custody, double rent, eviction, exclusive possession, foreclosure, grounds for possession(Eng), holding over, implied notice, mortgagee, possession(F), possessory interest(US), propriété, seisin, taking possession, unity of possession, vacant possession.

Terms in bold are defined elsewhere in the Encyclopedia.
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bibliographic references:
Oliver Wendell Holmes. The Common Law (Boston, MA: 1881, reprint 1963), Lecture VI 'Possession'.
C. Donahue et al. Cases and Materials on Property, an Introduction to the Concept and the Institution (3rd ed. St. Paul, MN: 1992), Ch. 2 'The Possession/Ownership of Land'.
R.C. Ellickson et al. Perspectives on Property Law (2nd ed. Fredrick, MD: 1995), Ch. 3 'The Significance of Possession'.
63C Am.Jur.2d., Property (Rochester, NY), § 28.
77 Am.Jur.2d., Vendor and Purchaser (Rochester, NY), §§ 355–7.
92 Cor.Jur.Sec., Vendor & Purchaser (St. Paul, MN), §§ 284–5.

P. Butt. Land Law [Australia] (5th ed. Pyrmont, NSW: 2006), Ch. 5 'Ownership and Possession of Land'.
S. Hepburn. Australian Property Law: Cases, Materials and Analysis (Chatsworth, NSW: 2008), Ch. 2 'Possession and Title'.
Sackville and Neave Property Law: Cases and Materials (8th ed. Sydney: 2008), Ch. 2 'Possession, Seisin and Title'.

B. Nicholas. An Introduction to Roman Law (Oxford: 1962), pp. 107–115.
K.G.C. Reid. The Law of Property in Scotland (London: 1996), Ch. 4 'Possession'.
W.S. Holdsworth. A History of English Law (3rd ed. London: 1923), vol. vi, pp. 447–81.
Cheshire and Burn's Modern Law of Real Property (17th ed. Oxford: 2006), pp. 7–8, 27–31.
A. Clarke & P. Kohler. Property Law: Commentary and Materials (Cambridge: 2005), Ch. 7 'Possession'.
E. Cooke (ed.). Modern Studies in Property Law (Oxford & Portland, Ore: 2001), vol. 1, Ch. 2 'The Proprietory Character of Possession'.
F. Pollock & R.S. Wright. An Essay on Possession in the Common Law (Oxford: 1888, reprint 1985).
M. Wonnacott. Possession of Land (Oxford: 2006), Ch. 1 'Meaning of Possession'.
35 Halsbury's Laws of England, Personal Property (4th ed. Reissue), §§ 1211–26 (possession of chattels).
28 Halsbury's Laws of England, Limitation of Actions (4th ed. Reissue), §§ 977–93 (possession of land).
M. Russell et al. Claims to the Possession of Land: Law and Practice (5th ed. London: Loose-leaf).

More Real Estate Terms
acceleration clause; bargain and sale; base fee; easement; emphyteotique lease; exclusive agency;
fructus(Lat); grosses reparations(F); highest and best use; home valuation code of conduct (HVCC)(US); immeuble(F); leasehold enfranchisement; market value (MV); once a mortgage, always a mortgage; partial release (or the rule in Dumpor's Case); resecuritization; resulting trust (and Quistclose trust); strata title; tenantable repair; Torrens title; unjust enrichment; waste