Possession (law)
Possession is having some degree of control over something else. Generally, to possess something, a person must have an intention to possess it. A person may be in possession of some property (although possession does not always imply ownership). Like ownership, the possession of things is commonly regulated by states under property law. Languages indicate possession via the possessive case.
Control
Control (sometimes called factual possession) means physical control. Only tangible things, such as a book, dog, or parcel of land, can be controlled in this way. Intangible things, such as a copyright, cannot be controlled and thus cannot be possessed. The methods used to control something will be dictated by factors such as the size of the thing, its situation, and whether it is moveable. The essential question is whether the person is able to control access to the thing. With some things, such as animals or fluids, there is an additional problem of preventing the thing from escaping.
Controlling a space allows people to control the smaller things within that space. Generally speaking, things located in a private home are controlled by the people in possession of that home. There are places, however, to which the public enjoys relatively free access, such as public roads and parks. In Waverley Borough Council v Fletcher, the defendant used a metal detector to find a medieval gold brooch nine inches beneath the surface of the plaintiff's public park. The plaintiff, as the possessor of the land, controlled the brooch because public access to the park did not include the right to dig in the soil.
Once someone has obtained enough control a thing to be in possession of it, that control can be relaxed without losing possession. For example, you can go on vacation and still have possession of your home. Possession will be lost if you lose something or throw it away.
Intention to possess
An intention to possess (sometimes called animus possidendi) is the other component of possession. All that is required is an intention to possess something for the time being. In common law countries, the intention to possess a thing is a fact. Normally, it is proved by the acts of control and surrounding circumstances.
It is possible to intend to possess something without knowing that it exists. For example, if you intend to possess a suitcase, then you intend to possess its contents, even though you do not know what it contains. 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 the garage and its contents does not necessarily amount to the guilty mind of intending to possess stolen goods.
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 the coat rack in a restaurant which disclaims responsibility for items left there.
Importance of possession
Possession is one of the most important concepts in property law. In common law countries, possession is itself a property right. Absent evidence to the contrary, it provides evidence of ownership. Possesion of a thing for long enough can become ownership. In the same way, the passage of time can bring to an end the owner's right to recover possession of a thing.
There may be varying degrees of rights to possession. For example, if you leave a library book 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.
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. If someone unknowingly sat on and therefore had control of a $10 note on the seat of a train, he or she could obtain possession by becoming aware of the note and forming the intention to possess it. People can also intend to possess things left, without their knowledge, in spaces they control.
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.