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Legal Definitions: Possess, Possession, Possessor

May 6, 2011

Author’s Note:

In my part of the world, criminal investigators and even prosecutors seem to have a problem distinguishing between the definitions of “own” versus “possess” as the legal definitions pertain to gun laws. I hope this helps them to understand that owning some thing is inherently different than possessing it.

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possess/pəˈzes/

▶verb
have (something) belonging to one.
Law have possession of as distinct from ownership.
have as an ability, quality, or characteristic.

POSSESSION: DEFINED

The concept of possession developed from a legal system whose principal concern was to avoid civil disorder. The general principle is that a person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to do so.

Possession refers to the exercise of dominion over property, holding or having property in one’s power. It is the right under which a person can exercise control over something to the exclusion of all others.

  1. It is a continuing exercise of a claim to the exclusive use of a material object.
  2. In Civil law, possession refers to detention or use of a physical thing with the intent to hold it as one’s own.
  3. Possession means holding property in one’s power or the exercise of dominion over property.
  4. By having possession one exercises control over something to the exclusion of all others.
  5. In law, possession is the control a person intentionally exercises toward a thing. In all cases, 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).
  6. Like ownership, the possession of things is commonly regulated by states under property law.

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.

  1. 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.
  2. In law, possession is the control a person intentionally exercises toward a thing. In all cases, 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.
  3. 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.

  1. In common law countries, possession is itself a property right. Absent evidence to the contrary, it provides evidence of ownership. Possession 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.
  2. 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 it 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 owning the object or not. Only a legal (possessor has legal ground), bona fide (possessor does not know he has no 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.
  3. 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.

Obtaining possession. Possession requires both control and intention.

  1. It is obtained from the first moment that both those conditions exist simultaneously.
  2. Usually, intention precedes control, as when you see a coin on the ground and reach down to pick it up.
  3. Nevertheless, it is conceivable that a person might obtain control of a thing before forming the intention to possess it.
  4. 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 can be obtained by a one-sided act by which factual control is established.

  1. This can take the form of apprehension (taking an object not in someone’s possession) or seizure (taking an object in someone’s possession).
  2. 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.

temporary transfer of possession is called a bailment.

  1. 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.
  2. 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.

  1. 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.
  2. Secondly, you might find something which someone else has lost.
  3. Thirdly, you might take something from another person without their consent.
  4. 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.

  1. 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).
  2. 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).
  3. One may also choose to terminate possession, as one throws a letter in the trash.
  4. Possession includes having the opportunity to terminate possession. If this were not the case, then police would be free to plant drugs on innocent people one second and charge them with criminal possession the next.

Weapon possession refers to a class of crime regarding the unlawful possession of a weapon by a citizen within an established society.

  1. Many societies both past and present have placed restrictions on what forms of weaponry private citizens (and to a lesser extent police) are allowed to purchase, own, and carry in public. Such crimes are public order crimes and are considered mala prohibita, in that the possession of a weapon in and of itself is not evil. Rather, the potential for use in acts of unlawful violence creates a possible need to control them.
  2. Some restrictions are strict liability, whereas others require some element of intent to use the weapon for an illegal purpose.
  3. Some regulations allow a citizen to obtain a permit or other authorization to possess the weapon under certain circumstances.
  4. Lawful uses of weapons by civilians commonly include hunting, sport, collection and self-preservation.

Types. Criminal possession of a weapon generally falls into one of several categories:

  1. Mere possession – The strictest of standards, some weapons are prohibited from any form of private ownership at all, even if kept in one’s dwelling under secure conditions (such as a safe).
    • Typically this covers dangerous military devices with almost no usefulness to civilians, such as bombs, artillery, machine guns, nuclear devices and chemical weapons.
    • However, this may also include possession of otherwise legal weapons by a person who is prohibited by law or court-order from possessing them (reasons include prior criminal convictions, conditions of probation or parole, and court-documented mental illness).
  2. Carry of a concealed weapon – A restriction on carrying of certain weapons on one’s person in such a manner that it is hidden from view of others. This can sometimes include
    • somewhere in the same vehicle or
    • close to one’s immediate surroundings where the weapon is easily reachable.
  3. Carry in plain sight – The opposite of concealed carry, some jurisdictions make it a crime to carry certain weapons in plain view of others. Reasoning may include to
    • prevent intimidation or menacing,
    • to create a friendlier-looking population by removing visual symbols of violence, or
    • to spite/control a segment of the population known for the carry of certain weapons (such as the samurai caste during the Meiji era).
  4. Carry on or about the person – A combination of the above, this type of restriction makes it illegal to carry the weapon at all, whether concealed or not. This may or may not include the person’s own land or place of business.

Strict Liability vs. Specific intent. All weapon possession crimes follow some standard of intent (mens rea), though this standard varies .

  1. The most common is “strict liability,” meaning that there is no requirement of intent whatsoever: Merely being caught by law enforcement with the weapon in question under the circumstances described in the law (possession, concealed, or open)is a crime in and of itself, with almost no possible defense other than proving the item is not an illegal weapon within the law’s definition.
  2. Some laws allow the accused a defense to the charge that the item in question was going to be used for a specific set of lawful purposes, such as one’s occupation (examples are sets of knives carried by a line cook en route to his job, or tools carried by a construction worker or craftsman). In this case, the burden of proof is often placed on the accused, requiring them to prove their lawful intent in court.
  3. Other laws require proof of specific intent to commit a criminal act by the accused, thereby placing the burden on the state to produce evidence that the weapon was possessed with some unlawful purpose (such as an attempted homicide, robbery, or assault). The circumstances under which law enforcement discover the weapon often play a strong role in this.

Constructive possession is a legal fiction to describe a situation where an individual has actual control over chattels or real property without actually having physical control of the same assets.

At law, a person with constructive possession stands in the same legal position as a person with actual possession. (For example, if one’s car is sitting in one’s driveway, one has physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent from one.)

1.      Constructive possession is an important concept in both the criminal law regarding theft and embezzlement, and the civil law regarding possession of land and chattels. For example, if someone steals your credit card number, the actual credit card never leaves your actual possession, but the person who has stolen the number does have constructive possession, and could most likely be charged with theft of your credit card information.

2.      Constructive possession is also an important concept in cases of seizure of goods by private or government authorities. Take, for example, a large piece of equipment. Should money be loaned against the value of the equipment, and the loan goes into default, the creditor may find it difficult to actually remove the equipment in a timely manner. However, it may by notice to the borrower take constructive possession, which effectively prevents the borrower from further using the equipment pending its removal. Similarly, when a landlord exercises a contractual remedy of distraint of goods for unpaid rent, the landlord need not remove the goods from the premises, but may take constructive possession of the goods through a simple declaration. At that point, if the tenant attempted to remove them, the tenant would be guilty of theft.

3.      However, a person who makes it impossible to take possession of another’s property has taken actual possession, not constructive possession. For example, if someone chains someone else’s car to an immovable object, he or she has taken possession of it even though he or she has not moved it.

4.      Constructive possession can also refer to items inside of a vehicle. It is possible for the owner and driver of the vehicle to be in constructive possession of all items inside their car. If a minor were to be driving their car with passengers who have possession of alcohol or any illegal substance, the driver may be cited for constructive possession.

5.      A person can be charged with constructive possession of an illegal device if they possess the otherwise legal material to assemble it. If a person has in his possession or control the ingredients to make an explosive device, he can be charged with constructive possession of that device.

Possessio bona fide means “possession in good faith”. A person is said to possess an object in good faith when s/he possesses such object being ignorant about the fact that any other person has a better title over the same than himself/herself. It is to be noted that such a possessor is entitled to all the benefits of the object.

The saying “possession is nine points of the law” is an old common law precept that means:

One who has physical control or possession over the property is clearly at an advantage or is in a better possession than a person who has no possession over the property. Even if a person is the rightful owner of the property but has no possession over it, the person who is in possession will be in a better position should the property ever be subject to challenge.

This is especially true with adverse possession. However mere possession alone does not grant the possessor rights in the property superior to those of the actual owner. This adage “possession is nine tenths of the law” is not a law but a logical rule of force that has been recognized across ages.

In re Garza, 984 S.W.2d 344, 347 (Tex. App. 1998), Texas court has held that “Despite the old saying that “possession is 9/10ths of the law,” mere possession and whatever right to the property that comes with mere possession does not grant the possessor rights in the property superior to those of the actual owner. J. CRIBBET, PRINCIPLES OF THE LAW OF PROPERTY 12-13 (1962); R. BOYER, SURVEY OF THE LAW OF PROPERTY 679-80 (1981).

In other words, there is a hierarchy of ownership, as reflected both in the common law and §1.07(35)(a) of the Penal Code:

One in possession of chattel has a greater right to it than one who lacks both possession and title. Yet, one who has title maintains a greater right over the chattel than

1) one who simply has possession and

2) one who has neither possession nor claim of ownership.Id.

Indeed, it can be said that the title owner has the greatest rights to the property. With that greatest right comes the power to negate the authority of those with lesser right.

Similarly, those who stand in the lesser position lack the power to override or negate the rights of the title owner.”

Possession of an instrument of crime is a criminal charge governed primarily by state laws, which vary by state. Such a charge is typically brought in cases involving drugs or weapons. The following is an example of a state law dealing with possession of an instrument of crime:

§ 907. Possessing an Instrument of Crime (c) Definitions.–As used in this section the following words and phrases shall have the meanings given to them in this subsection:

1.      “Instrument of crime.” Anything specially made or specially adapted for criminal use; or

2.      Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have. This shall include, but not be limited to, common burglary tools, tire irons, stun guns and baseball bats.

The offense of property possession of stolen property is made up of two parts.

  1. First, a person charged with this offense must have property that was (or was partly) gained by theft, fraud, or any other crime.
  2. Second, the person must have known that the property was stolen or gained by fraud. Also, if the prosecutor can show that it was obvious that a reasonable person would have thought the property was stolen and the accused failed to investigate whether it was stolen or not, he or she can be found guilty of possession of stolen property.

A person who is innocently in possession of stolen goods will not be guilty of a crime, but generally, the goods will be returned to the owner.

26 USCS § 5861 (d) makes it a Federal crime or offense to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. 

In order for a person to be guilty of the offense, it should be proved beyond reasonable doubt that the person possessed a “firearm; and the “firearm” was not at that time registered to the person in the National Firearms Registration and Transfer Record.

Possessory Action is an action to obtain, recover, or maintain physical possession of property, and not title to it.

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One Comment
  1. Hello.This article was extremely remarkable, especially because I was investigating for thoughts on this issue last Friday.

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