In civil law countries, possession is not a right, but a (legal) fact that enjoys some protection by law. It may provide proof of ownership, but as such does not satisfy the burden of proof. For example, ownership of a house is never proven by mere possession of a house. Possession is a de facto state of exercising control over an object, whether it is the owner or not. Only legal (the owner has a legal basis), bona fide (the owner does not know that he does not have the right of possession) and regular (not acquired by force or deception) possessions can become property over time. An owner enjoys a certain judicial protection against third parties, even if he is not the owner. “Legal possession” is a term used by the landlord-tenant bar. We recently came across a settlement agreement that required the tenant to deliver “swept legal possession” to the landlord no later than a certain date. In another situation, a good guy guarantees limited liability for obligations that arise before the date the tenant surrenders “legal possession” to the landlord. What exactly is legal possession? Possession requires both control and intent. It follows from the first moment that both conditions exist simultaneously. Usually, intent precedes control, such as when you see a coin on the bottom and stretch down to pick it up. Yet it is conceivable for a person to take control of something before intending to possess it.
If he were unknowingly seated in the seat of a train and therefore in control of a $10 bill, he could take possession of it by taking cognizance of the ticket and intending to possess it. People may also intend to own things that have been left unknowingly in spaces they control. In the past, actual possession was required for a criminal conviction. Beginning in the 1920s, however, the courts began to extend criminal possession to implied possession. The federal ban on intoxicating spirits has led to several cases of criminal possession. In one of the first criminal cases where implied possession was used, the court convicted a defendant of possession of illegal liquor in suitcases in the possession of another person (People v. Vander Heide, 211 Mich. 1, 178 N.W. 78 [1920]). Subsequent cases, particularly drug cases, have further strengthened the law of criminal possession. Federal and state laws make possession of many dangerous or unwanted objects punishable.
For example, Section 5861 (1996) of 26 U.S.C.A. prohibits the possession of certain firearms and other weapons. Similarly, possession of other items deemed harmful to the public, such as narcotics, burglary tools and stolen property, is punishable under various laws. Criminal possession, particularly of drugs, has been a major source of controversy. Making possession a crime allows arrests and convictions without proving the use or sale of a prohibited item. LexisNexis® and Bloomberg Law are external online distributors of ALM`s extensive collection of current and archived versions of legal news publications. LexisNexis® and Bloomberg Law clients may access and use ALM content, including content from the National Law Journal, The American Lawyer, Legaltech News, New York Law Journal and Corporate Counsel, as well as other sources of legal information. Are you a lawyer? Visit our professional website » A temporary transfer of ownership is called a deposit. Surety is often thought of as the separation of ownership and possession. For example, the library retains ownership of the book as long as you own it and has the right to take it back when your right is exhausted. A common transaction with a deposit is a conditional sale or hire purchase, where the seller leaves the buyer in possession of the item before it is paid.
The buyer pays the purchase price in installments and when paid in full, ownership of the item passes from the seller to the buyer. Owning real estate is a matter of physical fact. Having the right or legal right to possession is not possession. Possession is a physical concept, not a right. As Black`s Law Dictionary says, possession is “the possession or holding of property in one`s power.” This power means having physical dominance and control over property. This dominance and control can be exercised by excluding others or letting others in. It is the fact of this physical control that is possession. This power could be exercised legally or illegally. It could be exercised in a way that constitutes a violation of the law. But in any case, it is the physical fact, the fact of having or holding property in one`s power and control, which constitutes possession. There are different forms of transfer of ownership.
You can physically pass the object (for example, hand over a newspaper purchased at the kiosk), but it is not always necessary for the party to literally enter the object for ownership to be considered transferred. It is sufficient that the object is in the de facto control area (for example, leave a letter in the mailbox). Sometimes it is enough for a symbol of the object to cede de facto control (for example, handing over the keys to a car or house). You can also choose to end possession by throwing a letter in the trash. Possession includes the ability to end possession. In the development of the civil (or Roman) legal system, property tended to take on more importance than property rights, and the same is true of the common law (or Anglo-American) system. Therefore, possession tends to be seen as prima facie evidence of property rights; There is this right against everyone except the rightful owner. The mere possession by a discoverer is sufficient to establish a claim against someone who refuses him the object without a better right than his own. The town of Winterset took possession of the castle in 1947. At FindLaw.com, we pride ourselves on being the leading source of free legal information and resources on the Internet.
Contact us. Abogado.com The #1 Spanish Legal Website for Consumers in Law, possession is the control that a person intentionally exercises over a thing. Like property, the possession of everything is usually regulated from one country to another by property law. In any case, to possess something, a person must intend to possess it. A person may be in possession of property (although possession does not always mean ownership). A discussion of the inconsistencies associated with the term “legal possession”, with the authors concluding that the term has no single, specific, and fixed meaning. In fact, different authorities attribute different meanings and none of these “official” meanings is compatible with the most common usage, i.e. “lawful possession”. POSSESSION, intern. Law. Possession refers to land held by no title other than simple conquest. 2.
In this sense, possession is distinct from a dependency which rightfully belongs to the land which governs it; and the colony, which is a country populated by citizens or subjects of the mother country. 3 Lav. C. C. R. 286. The idea of possession is as old as the related concepts of private property and property. Our modern property laws have their origins in ancient Roman doctrines of possession. English natural law inherited most Roman property ideas, and later the British brought their property rights to the American colonies. After the Revolutionary War, state and federal courts continued to use and develop historical concepts of ownership. Implied possession is a legal theory used to extend possession to situations where a person does not have practical custody of an object. Most courts have stated that implied possession, sometimes referred to as “possession in law”, occurs when a person has knowledge of an object and has the capacity to control it, even if he or she has no physical contact with it (United States v.