Introduction
Possession and ownership are some of the vital concepts in the field of Jurisprudence as they are the basis of property law and impact different legal, societal, and economic systems. It is necessary to consider these concepts to realize how roles and responsibilities for fulfilling rights are divided between people in a society. This article will attempt to offer a jurisprudential perspective of what possession and ownership are, how they have evolved, what necessarily constitutes them, and the law regarding the two concepts. Further, it will look at defenses to the claim of possession and ownership and look at cases and precedents that exist to support the concepts, also explore several jurisprudential stances on possession, and ownership.
Keywords: ownership, possession, property law , legal theory, Salmond’s theory.
1. Meaning & Definition
Possession: In it, possession means the control or occupancy of an item, whether real or personal. It means a tangible assertiveness or authority over an object or property in each society. Possession can be actual; this means that a person has the physical legal right to control the property and or has physical control of the property or constructive where a person does not have the physical control of the property but has the right to do so. Possession is always important when it comes to ownership, possession may be legally protected even though it is not the owner.
Ownership: Ownership is a much more liberal concept that covers all the rights that one might have to a thing or an object. It embraces the right to possess, occupy, abuse and thereby deny access to the property by other persons. Possession on the other hand refers to ownership; the legal right over the property, that can be backed up by the court of law. It is a total right which is wider than the possession right and may be exercised without taking physical control of the asset.
In law, possession and ownership may sometimes refer to different things or be used in a synonymous manner. Possession is concerned with the physical status of the property, that is the power a person has over the property while ownership examines the legal aspect of the power a person has over the property. For instance, the occupancy of an apartment is a tenant who formally has the property and has some privileges to use it though the landlord is the overall legal owner of the apartment.
Knowledge of such distinctions enables the evaluation of property controversy, the assertion of legal obligations and rights, as well as the assertion of legal remedies. This section does a preliminary work of setting the stage for the historical, legal and theoretical analysis of possession and ownership to be done in the rest of this article.
2. Historical Background
The course of possession and ownership is the ever-evolving concept with the impact of different legal systems and social development. Knowledge of their development offers useful information for today’s analysis and use of the concepts.
Ancient Times: During the period of Ancient Mesopotamia, Egypt and Greece, acquisition and ownership of property came with statuses and authority. The rights of property were only for the governing classes; lords and land were the key measure of a man’s riches. In the Code of Hammurabi, which was one of the first legal codes, there existed provisions and guidelines on property and its ownership because concepts of property possessed a specific role in stabilizing society.
Roman Law: The Romans had a great influence towards the development of property law. They thus defined the difference between dominium which stands for ownership and possession which equally stands for possession. From the staples of Roman laws, it was recognized that ownership was an absolute right, possession on the other hand could be temporary and could change. The Corpus Juris Civilis which was gathered under Justinian became the legal code for later legal systems in Europe.
Medieval Period: Before the period of renaissance, Europe was mainly under the feudal system. This was feudalism because lords had superior authority in owning land as the king was at the top level of authority giving land to nobles in return for services. This regime generated a highly intricate structure of possessory and ownership rights so while tenants enjoyed the right of possession of land, ownership remained in the custody of the sovereign.
Common Law and Equity: From the development of common law in England the institutions of possession and ownership open new perspectives. Common law courts paid attention to legal title while courts of equity looked at the holder’s equity or the fairness of the case. Long story short, finer differentiation between Real outright ownership and legal ownership and equitable ownership came into picture which led to more flexibility in the legal rights and remedies attached to ownership.
Modern Era: As a result of the Industrial Revolution and emergence of capitalism, there were radical changes in property law. Possession of movable assets, for instance machinery and other products became more valuable. New legal forms were adopted for such kinds of property to be recognized and protected. The contemporary world has also witnessed a combination of the civil law and common law legal systems mainly through the intervention of international conventions and treaties governing the property rights regimes in the countries.
3. Essentials
Laying down of possession and ownership requires one to fulfil some legal standards. These elements vary depending on the jurisdiction and the type of property involved but generally include the following: These elements vary depending on the jurisdiction and the type of property involved but generally include the following:
• For Possession:
1. Physical Control: Adverse possession relates to holding the property through physical control over it. Constructive possession may be real if one has the legal right to be in possession of the property though he may not physically exercise the possession.
2. Intent to Possess: The possessor must possess the property and have the intention of having possession of the property. This intention makes possession a different concept from custody, which refers to holding the property for someone, albeit temporarily.
3. Continuity: There is a legal necessity by which possession must be established for a certain time period. The interrupted or sporadic possession has the possibility not to meet legal requisites.
4. Exclusivity: Beneficial use must also be outcomes, it must be an ultimate one, that is, it is the final and complete attainment of the property as regards the owner and others.
Theories of possession
1. Pollock’s Theory
According to Pollock possession is defined as having custody or physical control of a thing. He points out that possession is deemed to be the seeming capacity to make other people stay away from the use of the object. Finally, according to possession, one has control over an object and the right to prevent other people from using the object.
2. Salmond’s Theory
Possession is defined by Salmond as the continuation of a claim of ownership to an object and the right to use it without anyone else’s interference. For Salmond, possession involves two elements: For Salmond, possession involves two elements:
– Animus Posidendi (Mental Element) : Also, the purpose of having the object to be the only one to have it.
– Corpus (Physical Element) : Control over the choice of object in physical terms.
However, Salmond stresses that possession in law and possession in fact are inseparable and that possession should be defined only with the help of the criteria of common sense.
3. Karl von Savigny’s Theory
Savigny identifies two elements of possession:
Corpus: Also, general physical capacity to act about the object and to control access to it.
Animus Domini: Moreover, possession entails the intention to hold the object as one’s own.
He advocates that possession relates to the physical ability to control and deny access to the object to other people.
• For Ownership:
1. Legal Title: It can therefore be described as the legal title of a property or deed. This title vests in the holder the highest of management and disposition of the property in controversy.
2. Right to Use and Enjoy: Is the liberty interest of an owner to control the property or the way he desires to use the property without turning to the law or regulation that guides the usage of the property.
3. Right to Transfer: Ownership also enables the person to convey the property to other people through selling it, giving it to other people or even passing it on to a successor.
4. Right to Exclude: The owners have the right to exclude people or persons from or the right to be involved with their property.
Theories of ownership: –
1. Austin’s Theory
Jurist: John Austin
Ownership is a right over a determinate thing which is indeterminable with respect to the person of the user, adjustable with respect to disposal and boundless as regards time. Owner to occupy or to let the property or misuse the property; but there is some legal regulation with regards to this. They are allowed to pass title to property to others or to sell or encumber the property as they choose. Ownership is enduring and runs in Pari Materia with the owner’s life, which means that it does not come to an end upon the owner’s death.
Criticism:
Ownership is a bundle of rights and even when some of these rights are transferred the residual rights are those of ownership. It is not just a right as it is a thing that develops a relation between the right and the person to whom the right belongs. Thus, legal and practical concerns can limit the ‘indefinite’ user and its corresponding ‘unrestricted’ nature.
2. Salmond’s Theory
Jurist: John Salmond
Ownership is a complex title that a person has in an object, meaning that it is a set of several enforceable rights which this person has over it anybody. These are the right of ownership, the right to enjoy the item or asset as one wishes, and the right to change or sell it. Ownership remains perpetual and is always characterized by residual interest, the extent that even if some rights are given out on lease, such as with bare ownership, the owner retains some residual rights.
Criticism:
It is according to Duguit that ownership relates to the thing itself and not a right. Salmond however has categorized rights into tangible rights and intangible rights (for example: copyrights, and rights of way).
3. Marxist Theory
Origin: Karl Marx
Aims at the historical perspective and possible changes to it as well as its effects on society. Capitalist ownership was born when people made money with tools and materials, and thus it entailed social differentiation.
It refers to where the state controls the means of production and where important resources and businesses belong to everyone. On the other hand, private ownership is the right to ownership of consumer goods that are vested in individuals, hence personal possession and utilization of commodities. This contrast is pointed out in a transition from owning objects for oneself to capital-owned objects where the primary purpose is to control assets for general social and economic purposes.
Impact:
Ignores the problem of industrialists and workers’ conflict. Some of the solutions thought to be possessing the potential to reverse the effects of capitalist exploitation include the Nationalization of industries.
4. Future Implications
The issues of possession and ownership remain relative to society’s changes, as well as developments in technology. Cyber property in the form of intellectual property and virtual assets are other issues and prospects in the modern legal environment. It remains to notice that comprehending the traditional concepts of possession/ownership will be important regarding these trends.
5. CONCLUSION & COMMENTS
Control and title are fundamental ideas in property law that define roles and entitlements of people regarding properties. This paper aims to discuss their importance in jurisprudence as backed by their historical background, legal classifications, as well as practical applications. With the changes that are ever constant to the different forms of property and the societal requirements, possession and ownership will always be crucial in shaping laws that govern the ownership of property.
6. REFERENCES
• Books / Commentaries / Journals Referred
1. Honoré, A. M. (1961). “Ownership”. In A. G. Guest (Ed.), *Oxford Essays in Jurisprudence*.
2. Blackstone, W. (1766). *Commentaries on the Laws of England*.
3. Locke, J. (1690). *Two Treatises of Government*.
• Online Articles / Sources Referred
1. Cornell Law School. (n.d.). “Possession”. Legal Information Institute. [Link](https://www.law.cornell.edu/)
2. FindLaw. (n.d.). “Property and Ownership”. [Link](https://www.findlaw.com/)
• Cases Referred
1. Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805).
2. Tulk v. Moxhay, 41 Eng. Rep. 1143 (1848).
• Statutes Referred
1. Transfer of Property Act, 1882 (India).
2. Adverse Possession Act (various jurisdictions).
